1. MUSHTAK ALI KAZI (CHAIRMAN).-This is an appeal under section 4 of the Sind Service Tribunals Act, 1973 arising from an order of the Government of Sind, Services and General Administration Department, dismissing from service the appellant Muhammad Saleem Memon a Civil Judge in exercise of powers under the Sind Civil Servants (Efficiency and Discipline) Rules, 1973.
2. The facts in brief are that the appellant was appointed Civil Judge grade-17 on the recommendation of the Sind Public Service Commission on 26th December. 1973. Within a short period after his posting complaints were received by the Chief Justice Sind High Court, in respect of his corrupt practices. He was accordingly served with a charge-sheet dated 12th March, 1978 containing a number of charges. Most of these charges were mentioned in the transfer applications moved against the appellant in cases pending before him including 'the complaint of Mr. Rasool Bux, Advocate. There were also number of applications and telegrams received by District Judge, Sukkur that the appellant was dis--honest man, a drunkard and a womaniser and he indulged in politics and got mixed up with litigants in cases pending before him. The appellant was transferred from Mirpur Mathelo to Jacobabad but he did not improve and even the Members of the Jacobabad District Bar Associa--tion complained against him and some of the Senior Members of the Bar stopped appearing in his Court.
3. The above charge-sheet was accompanied by the statement of allega--tions which were forwarded to the appellant under the signature of Justice Agha Ali Hyder, Acting Chief Justice in his capacity as Authorized Officer. After getting the explanation of the appellant the Chief Justice appointed first Mr. Atta Muhammad Kazi and then Mr. Ali Madad Shah Syed, Member Inspection Team, High Court of Sind as Enquiry Officer to conduct the enquiry against the appellant at Sukkur.
4. The Enquiry Officer submitted a lengthy report giving specific findings in respect of each charge contained in the charge-sheet. The Enquiry Officer while concluding his report remarked that the appellant did not enjoy good reputation during the tenure of his posting at Mirpur Mathelo. That he had placed himself under obligation of a local political leader. That he had been found guilty of abuse of authority as a Judicial Officer by ordering attachment of office furniture of Mr. Rasool Bux Sial, Advocate the appellant had purposely delayed implementation of the order of District Judge, Sukkur regarding transfer of Wali Muhammad Baliff. That these actions constituted misconduct.
5. The Enquiry Officer also found the appellant guilty regarding the charge of general reputation for corruption. This report was dated 12th July, 1979. The Chief Justice forwarded this report in his capacity as Authorized Officer to the Authority remarking that there were number of allegations of serious nature which had been proved, and he accordingly recommended dismissal from service of the appellant.
6. The Government of Sind passed orders dated 2nd September, 1979 dismissing the appellant from service with immediate effect. This order was sent to the appellant through the Registrar, High Court of Sind Karachi. The endorsement on the order showed that copy of the Enquiry Report and order passed by the Chief Justice/Authorized Officer were enclosed alongwith the order of dismissal for information of the appellant.
7. The learned Counsel on behalf of the appellant has taken the preliminary legal plea that the Government as the Authority had passed orders dismissing the appellant without furnishing copy of the report of the Enquiry Officer to the appellant alongwith the recommendations of the Authorized Officer and without calling upon the appellant to show cause why the action proposed may not be taken in regard to him. The advocate has emphasized that the grounds of action were not communicated to the appellant at that stage nor was he given a reasonable opportunity of showing cause against his dismissal. It has also been argued by the learned Counsel that apart from the charge-sheet there were certain other complaints made after the service of charge- sheet which were also enquired into by the Enquiry Officer. But regarding this point it has been stated by the respondents that the additional material forming subject-matter of enquiry had not been used against the appellant and those additional charges not contained in the charge-sheet had not been proved.
8. Reliance has been placed by the learned Counsel for the appellant on the recent decision of the Supreme Court in the case of Syed Mir Muhammad v. N.-W. F. P. Government (PLD 1981 SC 176). In that case similar grounds were raised for challenging the order of removal from service of the official in that case a Senior Civil Judge of Hazara posted at Abbottabad. Their Lordships of the Supreme Court approved the previous decisions in Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal, Lahore (1973 SCMR 455) and Islamabad Club v. Punjab Labour Court No. 2 (PLD 1908 SC 307). It was observed in the former decision that:---- ---In our opinion, therefore, it was necessary and consistent with the principles of natural justice that not only the respondent should have been furnished with a copy of the enquiry report but also he should have been given an opportunity to show cause why the order of dismissal should not be passed against him. Evidently such an opportunity must take the form of written show-cause notice to the respondent."
9. "After giving our anxious considerations to the submissions made by the learned Counsel for the parties, we have formed the view that in a case where formal enquiry is held, it seems to be an implicit requirement of the relevant rules that a copy of the enquiry report should be furnished to the accused officer so as enable him to offer his explanation with regard to the adverse findings, if any, recorded against him by the Enquiry Officer of the Enquiry Committee, as the case may be.
10. Such a requirement cannot be brushed aside by saying that it would amount to a second show- cause notice."
11. It has been further observed in the above judgment that apart from the requirement of the principles of natural justice, it is also the implicit requirements of rules 5 and 6 of the Civil Servants (Efficiency and Discipline) Rules, to inform the accused of the action proposed to be taken in regard to him and the grounds of the action, and give him a reasonable opportunity of showing cause against that action. In case where an Enquiry Officer is appointed, according to sub-rule (i) of rule 6, the Authorized Officer has to frame a charge and communicate it to the accused together with statement of allegations, explaining the charge, and the accused is required to put in his written defence. At this stage the explanation requited from the accused is only of a preliminary nature. A formal enquiry then follows according to the procedure outlined in Rule 6. Where it is proposed to impose a major penalty, the authority is required before passing orders to take into consideration the explanation of the accused referred to in sub-rule (4) of Rule 5. A proper explanation of the accused officer in such a case can only be furnished if he is supplied a copy of the enquiry 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. Under rule 5(3) which embodies the shorter procedure to deal with disciplinary matter, it is contemplated that the Authorized 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 of showing cause against that action. In the case of shorter procedure where enquiry is dispensed with this stage is reached when the grounds of the proposed action and the allegations are conveyed to the accused. But in case of formal enquiry, this stage is reached only after the enquiry has been completed and the Authorized Officer has formulated his views in the light of the enquiry report. Their Lordships accordingly emphasized that on proper construc--tion of rule 5 and rule 6 read together, it is a statutory requirement that if a formal enquiry is held then the Authorized Officer should, after he has tentatively decided upon the action he proposes to recommend to the authority, give an opportunity to the accused officer to offer his explana--tion against the proposed action in the light of the findings of the Enquiry Officer, before sending his recommendations to the authority.
12. That this would necessitate that a copy of the enquiry report be furnished to the Accused Officer at this stage and he should be apprised of the action proposed against him.
13. The learned Advocate-General Mr. Saeed A. Shaikh frankly concedes that in the present case forming subject-matter of this appeal, the enquiry report was not supplied to Mr. Muhammad Saleem, Civil Judge by the Authorized Officer nor was he informed of the action proposed to be recommended against him. Therefore, the Acting Chief Justice and the Authorized Officer before formulating his recommendations for the authority did not have the benefit of the explanation of the accused in relation to the material brought on the record during the enquiry proceed--ings and the findings recorded therein by the Enquiry Officer. As held by the Supreme Court this was essential requirement under the rules and the failure to do so invalidates the recommendations of the Authorised Officer and the ultimate order passed on their basis by the authority against the accused officer.
14. The appeal is allowed in the above terms. There will of course be no order as to costs.
15. The only question that remains is regarding the payment of arrears of salary to the appellant from the date of dismissal till his formal re-instatement in service, after the setting aside of the order of dismissal. Under Section 18 of the Sind Civil Servants Act, 1973, a civil servant appointed to a post or grade shall be entitled, in accordance with the rules, to the pay sanctioned for such post of grade.
16. The second proviso under this rule relevant to the question of payment of arrears reads as under :- "Provided further that where a civil servant has, under an order which is later set aside, been dismissed or removed from service or reduced in rank, he shall, on setting aside of such order, be entitled to such arrears of pay as the authority setting aside such order may determine."
17. Thus full payment of arrears does not necessarily follow every re-instatement in service on appeal.
18. This point is further clarified in Sind Civil Service Rules Manual, Volume-(, Rules 152, that when a Government servant who has been dismissed, removed or suspended is re-instated, the revising or appellate authority may grant to him for the period of absence from duty ;
(a) If he is honourable acquitted the full pay to which he would have been entitled if he had not been dismissed, removed or suspended and by an order to be separately recorded, any allowance of which he was in receipt, prior to his dismissal, removal or suspension ; or
(b) If otherwise, such proportion of such pay and allowance as the revising or appellate authority may prescribe. In cases falling under (a) the period of absence from duty will be treated as period spent on duty.
19. Thus the quantum or proportion of actual pay and allowance payable to the accused officer on re- instatement for the period of his, compulsory absence from duty, depends on the question of his monourable acquittal as a ground of re-instatement. In the present case no opinion has been expressed regarding the facts and merits any order as to payment at this stage is likely to prejudice the fresh consideration of the entire case. We would accordingly defer this question until the case is finalized.