MUHAMMAD IRSHAD KHAN (MEMBER).-The appellant having qualified the Central Superior Services Examination held in 1972, was selected by the Federal Public Service Commission for appointment on a post of Grade-17 and after successfully undergoing training for one year at the Academy for Administrative Training, Lahore, was appointed as Section Officer in the Ministry of Commerce at Islamabad in the year 1975. He was then transferred and posted as Assistant Director, Bureau of Emigration and Overseas Employment, Karachi, with effect from the 4th May, 1976. While so serving he was served with a Memo. No. BE-9-1/77/D (WAC) dated 16-4-1978 by the Director-General, Bureau of Emigration and Overseas Employment, Government of Pakistan, Karachi, whereby he was required to explain his position regarding an alleged illegal act amounting to corruption and undue favouritism committed by the appellant by issuing clearance individually on the basis of individual direct employment visas to 103 Pakistani Labourers Sweepers recruited by Zarqa Town Municipality, Jordan, holding Group Visas. In response thereof the appellant vide his explanation dated the 19th April, 1978, contending that the charges levelled against him in the said memo. Were based on presumptions rather than on facts, pleaded not guilty of the charges. The explanation offered by the appellant having been con--sidered unsatisfactory, the Secretary Ministry of Labour and Manpower, being an authorised officer, in respect of the employees of the Bureau of Emigration and Overseas Employment, served a charge- sheet dated 2-6-1978 on the appellant for the charge that he on 21st, 22nd and 23rd February, 1978, while posted in the Office of the Protector of Emigrants, Karachi and dealing with the Director Employment Visas clearance, cleared 103 Pakistani Labourers Sweepers recruited by Zarqa Town Municipality, Jordan, on the basis of Direct Employment Individual Visa in violation of the procedure laid down in Circular No. O/Pri-1 (11)/77, dated 24-1-1977, while these Labourers/ Sweepers were in possession of a Group Visa No. 10/1112470, dated 30-1-1978, issued by the Ministry of Interior, Jordan, and their case was to be processed through a licensed Recruiting Agent after signing Foreign Service Agreements. The appellant was called upon to explain in writing within fourteen days of the issue of the said charge-sheet as to why a disciplinary action should not be taken against him under the said Rules. He was further required to state whether he would like to be heard in person.
The appellant submitted his explana--tion to the said charge-sheet denying and refuting the allegations. There--upon Col. Muhammad Mohsin Khan, the then Joint Secretary in the Ministry of Labour and Manpower, was appointed as an Enquiry Officer, who after holding the enquiry proceedings, submitted a detailed report wherein he held the appellant guilty of misconduct on the basis of his finding that the appellant had shown gross negligence in performance of his duties by giving clearance to 103 Pakistanis to proceed for employment with Zarqa Town Municipality in Jordan when they did not have valid papers for getting such clearance. The Secretary, Labour and Manpower Division, purporting to act as an authorised officer, agreed with the finding of the Enquiry Officer and recorded that the following minor penalty may be awarded to the appellant :- "He should be reduced in the seniority list by two places and his two annual increments be stopped."
2. It, however, appears that before issuing the order, the file was shown to the Minister for Labour and Manpower Division who remarked as under :- "It appears from the file that Syed Javed Raza has not yet severed his connections with the Office Management Group and still belongs to the said Group, which is controlled by the Establishment Division. If so, the Secretary, Labour and Manpower is not the authorised officer to award even minor penalty to him. In the circumstances, before inflicting any penalty to Syed Javed Raza, the Establishment Division may also be consulted. "
3. The matter was referred by the Secretary, Labour and Manpower Division to the Secretary, Establishment Division, seeking a clarification as to whether the appellant was to be treated as a member of the Office Management Group or the officer of the Bureau, and adding that in case the appellant was found to be a member of the Office Management Group, further action to finalize the disciplinary action may be taken by the Establishment Division but if he was to be treated as an officer of the Bureau, then the case stood decided by the Secretary, Labour and Man--power in the capacity of `authorised officer'. The case then appears to have been examined in the Establishment Division and in their view the appellant was still considered to be a member of the Office Manage--ment Group. The Establishment Division, therefore, appears to have started de novo enquiry proceedings against the appellant and appointed Mr. Farman Ali, Deputy Secretary, Establishment Division, as an Enquiry Officer, who after holding the enquiry proceedings afresh, submit--ted his report concluding that :- ---Syed Javed Raza while posted as Assistant Director in the Office of the Protector of Emigrants, Karachi, had failed to exercise due care and caution in processing the cases of 103 Pakistani Labourers/ Sweepers recruited by Zarqa Town Municipality, Amman, Jordan, and cleared these intending emigrants in exercise of such powers not vested in him."
4. A summary was then submitted to the President by the Establish--ment Secretary, seeking approval to the proposal that the penalty of removal from service may be imposed on the appellant: The proposal appears to have been approved by the President. Accordingly the appellant was removed from service vide Notification dated 24-6-1979.
5. We have heard the learned counsel for both the parties and also perused the record of the case placed before us by the Departmental Representative. The learned counsel for the appellant has assailed the impugned order on several grounds of law and facts. He mainly contended that the impugned order is based on the proceedings and enquiry report of the second inquiry conducted by Mr. Wazir Farman Ali which could not be legally conducted ; that the appellant was not afforded an oppor--tunity of being personally heard by the authorised officer/authority : that the Enquiry Officer has based his report on his conjectures and surmises and not on the factual position of the case and that the second show-cause notice alongwith the copy of the enquiry report was not served upon the appellant which has been held as a statutory requirement in Syed Mir Muhammad's case (PLD 1981 SC 176). He, therefore, submitted that the impugned order and action taken against the appellant is vitiated due to these omissions and irregularities. The learned .Counsel, without prejudice to his above stand and as an alternative plea, argued that vis-a-vis, the findings of the two Enquiry Officers, the penalty of removal from service is very harsh and disproportionate to the extent of the appellant's responsibility in the mistake committed by the Office of the Protectorate of Emigration. It was reiterated that the alleged omission was a bona fide mistake which could not be solely attributed to the appellant, hence the appellant alone was not liable to any penalty.
6. We have given our careful consideration to the submissions of the learned counsel for the appellant and reached the conclusion that the procedural irregularity pointed out by him did not vitiate the impugned order on the face of the frank admission of the appellant that he com-- mitted a procedural mistake, though he pleaded that this was a case of bona fide mistake which was committed by him due to rush of work and his ignorance of Arabic language. Nevertheless substance of the charge was admitted by the appellant to be correct. Therefore, we do not see that any prejudice has been caused to the appellant in his defence due to any procedural irregularity : for it is now a well settled legal position that if an omission, defect or irregularity in the conduct of the enquiry has not caused material prejudice to the accused officer in the matter of his defence, then such an irregularity, omission or defect would not, by itself, vitiate the action taken against him.
7. We have, however, observed that initially in appointing Col. Muhammad Mohsin as Enquiry Officer and passing order on the basis of his report, the Secretary, Labour and Manpower Division has rightly assumed the power of an `Authorised Officer' for the only reasonable inter--pretation of the relevant provision contained in the notification of designation of the "Authority" and the "Authorised Officer", in our view, would be that in respect of the appellant who was at the relevant time serving as Assistant Director, Bureau of Emigration and Overseas Employment, the authorised officer shall be the Secretary of Ministry concerned i.e. The Ministry of Labour and Manpower whereunder at the relevant time the appellant was serving irrespective of the position whether he had severed his connection with the Office Management Group or continued to be a member thereof. Therefore, the view taken by the Establishment Division that the Secretary, Labour and Manpower Division could not act in the case as an authorised officer, seems to be erroneous. There was, therefore, hardly any justification for holding de novo enquiry.
Be that as it may however, the President, being the authority, in any case, was well competent to pass the impugned order under the revisional jurisdiction conferred on him by rule 6-A of the Government Servant (Efficiency and Discipline) Rules, 1973. Therefore, the impugned order passed by the President, having been passed in due exercise of legal power vested in him, does not suffer from a jurisdictional defect, hence, is neither unlawful nor without jurisdiction.
8. We would now consider the alternative plea raised by the learned counsel for the appellant. Even otherwise this Tribunal is obliged to look into every question of law and fact involved in a case including the quantum of punishment. It is pertinent that initially in the charge-sheet dated the 2nd June, 1978, the appellant was charged with misconduct and corruption but no evidence whatsoever was placed by the Department before Col. Muhammad Mohsin, Enquiry Officer, who, therefore, rightly exonerated the appellant from this charge by observing in his report that "hence the charge of corruption against the officer is NOT proved." Obviously, therefore, this charge was not levelled against the accused in the second charge-sheet dated 29-1-1979 wherein the accused was charged with inefficiency and misconduct only. To appreciate the nature of the misconduct allegedly committed by the appellant, it may first be seen that Col. Muhammad Mohsin, the first Enquiry Officer, had concluded in his report that the appellant had shown gross negligence in performance of his duties by giving clearance to 103 Pakistanis to proceed for employ--ment with Zarqa Town Municipality, Jordan, when they did not have valid papers for getting such clearance, This conclusion is based inter alia on his finding that 103 Pakistani applicants for clearance did not, along--with their applications, submit all the required documents most particularly the letter of appointment from the employer. Though the appellant had for the first time received cases for employment in Jordan and he was not familiar with the papers which had been received from Jordan and also he himself was not well .Conversant with Arabic language yet he did not consult the Protector of Emigration before giving the clearance while .In other cases where he had any doubt, he did consult the Protector of Emigration in writing or at times verbally. It thus appears that the first Enquiry Officer Col. Muhammad Mohsin Khan, found the appellant guilty of the only omission that he issued the clearance to the above-said 103 intending emigrants without consulting the Protector of Emigration.
9. The second Enquiry Officer Mr. Wazir Farman Ali, framed the following two issues for adjudication in the case :-
(i) What is the correct interpretation of visa letter Exh P/B ? Whether it was in the nature of a group visa or individual visa ?
(ii) If the visa letter (Exh. . P/B) is -held to be a group visa, then whether Syed Javed Raza, Assistant Director, Office of the Protec--torate of Emigrants, Karachi, was competent to entertain such visa letters and issue clearance to the concerned individuals?"
On the first issue the Enquiry Officer recorded his finding in affirmative holding that : .
"A careful examination and appreciation of the English translation (Exh: P/B-1).Of visa letter Exh.
P/B,issued by the Ministry of Interior, Amman on 30-1-1978 reveals that it was not an individual visa as it concerned a group of Pakistan nationals. The relevant portion of the English version of visa letter Exh. P/B reads as under :- Pakistani nationals to be recruited, whose names are mentioned in document No. IC/11/1552 dated 18-1-1978, in respect of grant of Entry Visa for recruitment of Municipal Zarqa may be granted work permits on annual basis."
It may of interest to add here that it was admitted by the Enquiry Officer in para. 9 of his report that the, copy of the document dated 18-1-1978. Referred to above, was not shown to him by the Department yet he (the Enquiry Officer) presumed that visa letter related to no other group of individuals than the group of 103 Pakistani Labourers/Sweepers who were cleared by the accused appellant. Be that as it may, though the visa letter, English version whereof has been reproduced by the Enquiry Officer cannot, in strict sense, be said to be a letter of appointment yet the words "to be recruited" occurring therein do admit of a position of considering it as a letter of appointment by the accused appellant. In this view of the matter, the finding of the first Enquiry Officer that the accused appellant neglected in noticing absence of letter of appointment, does not seem to carry much weight nor the above visa letter, on the face of it, indicates in clear terms that it was a group visa. Therefore, the possibility of taking it to be an individual visa by the appellant through a bona fide mistake cannot also be overruled.
10. On the issue No. (ii) the Enquiry Officer has categorical-observed that the Departmental Representative had not produced any documentary evidence to prove that the appellant was not empowered to issue clearance for group visa holders. He (the Enquiry Officer) however, found the appellant guilty of the charge only, on a solitary basis, in the words of the Enquiry Officer himself that "the accused officer has, however, generously admitted during his examination on 14-3-1979, that he was not competent to issue clearance in cases of group visa holders." We are afraid we cannot see any justification for the Enquiry Officer to base his finding on the above admission of the accused while the Department could not prove that the accused was not competent to issue the group visa : for it is a universally accepted proposition that the prosecution should prove its charge beyond doubt and the benefit of doubt must go to the accused. If efficiency prevailed in the Department to the extent that they could not, show to the Enquiry Officer as to whether the accused was or was not competent to issue clearance to group visa holders. We do not see how could one expect such a degree of high efficiency from the accused, which was expected by the two Enquiry Officers. If this aspect of the matter is kept in view then there is force in the contention that the accused appellant alone was not liable to be penalised as other functionaries of the Department were also jointly responsible for the omission. Nevertheless, we cannot approve of allowing the accused to go scot-free mainly because, according to his own admission, he did commit a procedural mistake while processing the cases for clearance. The guilt of the accused, at least, to this extent is established. At the same time, however, considering that the accused appellant was a first offender, having only about four ,years' service at his credit; that he is being penalised mainly on the basis of his own admission, and the nature and character of the omission committed by him in the above-stated circumstances o the case, the quantum of punishment inflicted on him would appear to b much severe and disproportionate to the nature of offence. In our view, the penalty imposed on the appellant by the authorised officer, the Secretary, Labour and Manpower Division was more appropriate. We accordingly alter the penalty of removal from service and reduce it to the withholding of his two annual increments. Consequently the appellant should be reinstated into service.
11. Except the above modification in the penalty, the appeal is otherwise dismissed with no order as to costs.
A. O. RAZIUR RAHMAN (MEMBER). - While I do not find it possible to agree with the view of my learned colleague that, in the case of the appellant, the Secretary, Ministry of Labour and Manpower was the Authorised Officer, for the simple reason, that in the relevant notification on the subject (Establishment Division, Notification No. 7/1/73-DI, dated 5th July, 1979), the "Secretary" has been authorised "to be the Autho--rised Officer in respect of a Government servant belonging to a service or cadre, administratively controlled by a Ministry or Division" and, the appellant being an officer belonging to a carde administratively controlled by the Establishment Division, the reference to the Secretary in the notification obviously is to the "Secretary" of the Establishment Division, I am fully in agreement with him that, ,for the reason given by him in paragraph 9 above, the penalty deserves to be reduced. 1, accordingly, endorse the proposed order contained in my learned collegue's judgment.