JAMAL-UD-DN ABRO (MEMBER).-The appellant, Muhammad Siddique Khan was a peon in the Central Directorate of National Savings, Islamabad and was confirmed with effect from 1st July, 1972. His mis--fortune was that he was a good cook. He alleged that the then Chief Director of the National Savings dispatched him to Baghdad to serve his daughter and son-in-law as a domestic servant. When he reached Baghdad he was made to labour as a slave without salary. His passport was taken away from him so that he could not go back to Pakistan. However, he managed to escape from Baghdad, when he came to know that his family members were not being given his salary in Islamabad. His return from Baghdad, in such a manner, annoyed the Chief Director who threatened to throw him out of service. He was denied his salary for two months and seven days.
The appellant made a representation to higher authorities and ultimately filed a civil suit. To his ill luck, the facts enumerated in the civil suit, got publicity in the Press which created further complications for him. He was placed under suspension and was transferred from Islamabad. A show-cause notice dated 15th February, 1978 was served upon him which enumerated 8 charges against him. He submitted his reply to the show-cause notice, in consequence of which, the show- cause notice was cancelled by an order dated 28th June, 1978 passed by the Joint Director, National Savings, Rawalpindi. The very next day, on 29th June, 1978, the appellant was served with a fresh charge-sheet in which as many as 9 charges were levelled against him. An enquiry officer was appointed who submitted his findings on 18th September, 1978. The competent authority, thereupon, passed the impugned order of removal from service on 3rd October, 1978.
2. The respondents denied the allegations of male fides and contended that the appellant had gone to Baghdad of his own accord, in consequence of an application made by him. It was contended that the order of removal was rightly passed by the authority.
3. We have heard the learned counsels for the parties. The learned counsel for the appellant raised several objections but we will confine ourselves to a few of them which in our view are relevant. So far as the question of mala fades is concerned, the appellant has produced Photo--stat copies of letters written by the son-in-law of the Chief Director. We would prefer not to comment on this aspect of the case because the procedural illegalities are so apparent that adequate relief can be granted to the appellant without going into the alleged mala fides for which strong and conclusive proof is required.
4. We first refer to the impugned order dated 3rd October, 1978. The relevant part of the order reads :-- "Whereas, after completion of the procedure enquiry, Mr. Muhammad Siddique Khan has been found guilty of subversive activities, indiscipline and gross-misconduct, now, therefore, it is ordered that he be removed from service."
The removal order is apparently based on a misconceived notion that the appellant was found guilty, during the inquiry, of charges of subversive activities, indiscipline and gross-misconduct; whereas the enquiry officer had exonerated the appellant of all such charges. It is therefore, clear to us that the authority, while passing the order had not applied its mind. He had perhaps not even gone through the inquiry report and had passed the order of removal, which betrayed venom of the authority.
5. The second point in favour of the appellant was that the procedure, adopted by the enquiry officer, was topsy turvey, inasmuch as, instead of examining the prosecution witnesses first, and then giving a chance to the accused official to explain the circumstances against him and to lead defence, the enquiry officer examined the accused official first and subjected him to a lengthy examination running in 8 pages by putting searching questions to him. On the top of it, we found from the enquiry papers that one Mr. Muhammad Hanif, who; was a prosecution witness, was allowed to cross-examine the accused official. This was something unheard of in judicial or quasi- judicial proceedings. It was against the set principles of natural justice. It appears that the enquiry office remained under the thumb of this witness who was a highly, placed officer. Such an enquiry, could not be called a fair enquiry. It was rather an illegal enquiry, against the principles of natural justice and was therefore of no consequence ; and the order passed on the basis of such an enquiry was also wrong and stands vitiated.
6. Now let us see what were the findings of the enquiry officer. His findings were as under :- Charge No. 1, wilful absence from duty, not proved.
Charge No. 2, filing of a civil suit in Court of law, proved.
Charge No. 3,that he knew departmental procedure of making representations, not proved.
Charge No. 4,submission of applications direct to higher authorities, proved.
Charge No. 5, of subversive activities, not proved.
Charge No. 6, regarding publication in newspapers, not proved. Charge No. 7, regarding dismissal of civil suit, proved.
Charge No. 8,regarding filing of a criminal case against senior officers, proved.
Charge No. 9, publication in newspapers, not proved.
The sum total of the above findings is that the appellant was found guilty of:
(1) Filing of a civil suit.
(2) Dismissal of the civil suit.
(3) Filing of a criminal case and pursuing the same by engaging counsel.
(4) Submitting applications/representations direct to the higher authorities.
No other charge was proved against the appellant.
7. If we look at the so-called `proved' charges, the same could not be called as charges. The charge No. 1 was that the appellant had filed a civil suit and the other was that the suit was dismissed.
These charges snake no sense. If the suit was dismissed, how the appellant could be charges as guilty. The charge No. 3 was that he filed a criminal case. It is the basic right of every citizen to agitate his rights in civil Courts of the country. No one can hinder him from pursuing his remedy in the Courts of law. The appellant committed no offence or misconduct b knocking at the doors of a judicial Court of the country. If a civil wrong or a criminal offence is committed, it is rather a civic duty of a citizen to seek remedy in a Court of law. It is also his right to engage a legal counsel. The learned counsel for the State could not refute the principle, but he argued that the said act of the appellant had brought disrepute to the department and to the senior officers. If so, the senior officers' could seek remedy, if so advised, for libel or defamation, if they have moral courage and evidence to prove the same in the Court, of law.
8. The only charge that was proved against the appellant was that he made applications/representations to the higher authorities directly without sending them through proper channel. The enquiry officer had, in para. 4 of his enquiry report, quoted these specific instances which are enumerated as under :-
(1) Application dated 4th February, 1978 addressed to the Chairman, Federal Inspection Team, Rawalpindi.
(2) Application dated 2nd March, 1978 addressed to the President Employees Union, Islamabad.
(3) Application dated 12th February, 1978 addressed to the Finance Secretary, Islamabad.
There was no other application of which the appellant was charged or found guilty for sending the same direct to higher officers. So far as the application at S. No. (1) is concerned, it was addressed to the Chairman of the Inspection Team. An application to the Inspection Team is in they nature of a complaint and does not require to be sent through proper' channel. It was not an application addressed to the appellate authority or to any superior officer. Similarly, the application at S. No. 2, was addressed to the President of the Employees' Union and did not require to be channeled through any Government officer nor was it addressed to a superior Government officer. The only question that remained was that of the application at S. No. 3 which was addressed to the Secretary of Finance. The learned counsel for the appellant explained that this application was made in desparation when the appellant was not paid his salary and when all his representations made to his immediate officers were thrown in cold storage. He, therefore, made an attempt at a final representation, an advance copy of which was sent to the Secretary Finance, Islamabad. To send an advance copy of an application to a superior officer under such circumstances doses not violate any rule.
8-A. I have already discussed that the appellant had a civil right to seek his remedy from civil Courts of the country and for that purpose to engage a counsel. It was not his fault that the local Press found material out of it for publication in papers. The enquiry officer found that the appellant had no hand in getting the same published. The only charge that stood proved against the appellant was that he had sent an advance copy of a representation -to the Secretary Finance. For such a minor fault the punishment inflicted was removal from service, which was totally out of proportion. This was an indication of prejudice and mala fides.
9. The enquiry officer had exonerated the appellant of practically all the charges and we find that the authority did not apply its mind while passing the removal order on grounds of the so-called subversive activities, indiscipline and gross misconduct. This was not an order passed in accordance with law and as such should be termed as a mina fides order. The order is set aside and the appellant is re-instated in service with all consequential benefits.