' A.
0. RAZIUR RAHMAN (MEMBER).-The Appellant, a Chowkidar in the Department of Plant Protection, Government of Pakistan, Karachi, with effect from 1st December, 1977 who was working in the Office of the Plant Protection Adviser, Department of Plant Protection, Jinnah Avenue, Malir Halt, Karachi, was removed from service by an order, dated 10th June, 1980 issued by the Plant Protection Adviser and Director, on the ground of misconduct, under rule 4 (b) of Government Servants (Efficiency and Discipline) Rules, 1973. He preferred a departmental appeal against this order before the Secretary to the Government of Pakistan, Food and Agriculture Division on 22nd December, 1980. This delay in the filing of the departmental appeal was stated to have been due to the alleged late receipt of the impugned order, which, according to him, took place on 12th October, 1980. This departmental appeal does not appear to have been considered and disposed of by the competent authority but sent back to the department for disposal. The Plant Protection Adviser and Director, Department of Plant Protection, in his memo., dated 30th November, 1980 informed the Appellant of this fact and also explained the reasons for the action taken against him. Thereafter, the appellant came up before this Tribunal on 15th December, 1980. After the appellant had been heard, the appeal was admitted for regular hearing on 28th January, 1981 and the parties were heard at length on 13th March, 1983.
2. After hearing the parties and perusing the documents produced by them, we have come to the conclusion that the departmental appellate authority did not apply its mind to the case and, instead of examining the appeal on its merits, sent it back for disposal to the same authority which had passed the impugned order. In this manner, it shirked its own statutory responsibility in the matter, thereby giving the impression that it was not interested in looking into the grievances and problems of the employees of the offices and departments under its administrative control. In our opinion, this was a most improper approach on the part of the said authority and cannot be too strongly deplored.
3. So far as the present appeal also is concerned, we find that the appellate authority, namely, the Secretary, Food and Agriculture Division, who is respondent No, 2, has failed to file his written objections to the memo. Of Appeal and has neither explained his stand on the departmental action taken against the accused nor offered any justification for his failure to apply his mind to the case and give a decision on the departmental appeal against the impugned order. We interpret his action in passing on the departmental appeal to the same authority which passed the impugned order as rejection of the appeal and proceed to decide the present appeal on that basis. We would, however, be failing in our duty if we do not place on record our unhappiness at the manner in which he was treated his responsibilities not only in regard to the departmental appeal but also in regard to the appeal before the Tribunal and would like to bring this fact to the notice of the higher authorities for appropriate action. For this purpose, copy of this judgment should be endorsed to the C.O.S. To the President.
4. Coming to the merits of the case, we find from the record that on 5th April. 1978 the Plant Protection Adviser and Director issued an order, giving certain directions to his subordinate offices relating to observance of security measures for the protection of property in the Directorate. These included an order to the effect that : "Chowkidars under whose duty recent thefts have taken place should be suspended for service immediately and they should be proceeded against under Efficiency and Discipline Rules for dismissal from service."
5. As the office order containing the instructions stated, these instructions were issued on the basis of a report made by the Wireless Mechanic that the lock of his room had been found broken and certain articles found missing. The relevant portion of the office order in this behalf is reproduced below "Wireless Mechanic has reported this morning that the lock of his room has been found broken and one Stablizer and electric drilling machines have been stolen. A note has been passed on to the Security Officer. DD(A/C) and A.O. (G) may please make immediate report to the Police for immediate investigation. It may be pointed to the S.H.O., D.S.P. And D.I.-G. Concerned that the thefts in this Department are on the increase and the culprits are not being booked and Government stores are not being recovered. It should be impressed upon them to take positive and effective measures in this connection. The loss may also be reported to the A.G.P.R."
6. On the basis of the orders of the Adviser, mentioned above, 7 Chowikdars including the appellant, were placed under suspension by an order, dated 23rd April, 1978. Three days later, i. e.
On 26th April, 1978 these employees were served with show-cause notices (wrongly marked as charge-sheet) calling upon them to explain in writing within 7 days of the receipt of these notices why they should not be removed from Government service on account of inefficiency and negligence, as required under the Government Servants (Efficiency and Discipline) Rules, 1973. They were also informed that if they wanted to produce any witness in defence or to be heard in person, they should state so in their explanation. It was further added that if no explanation was received within the stipulated time, it would be presumed that they had nothing to say in defence and necessary action would be taken against them.
7. Since we are concerned only with the case of the Appellant, we shall not make any reference to the action taken against the other Chowkidars but confine ourselves to the developments pertaining to the show-cause notice served on the Appellant. So far as the allegations against him are concerned, these are contained in the statement of allegations appended to the charge-sheet.
The said statement is reproduced below "Statement of Allegations.-During your duty as Chowkidar on 24th, 25th March, 1978 and 4th, 5th April, 1978 theft cases within the workshop and wirelsss section of the Department occurred due to your inefficiency and negligence and as result, Government had to suffer financial loss."
8. In reply to the above, the Appellant submitted an explanation, dated 28th April, 1978, in which he denied the allegation levelled against him and stated that it was entirely baseless and unfounded.
He also stated that on 24th March, 1978 and 4th April, 1978 he was on duty from 7 a. m. To 3 p. m. And no report of any theft or breaking of lock either came to his notice or was reported to him, from which it appears that the allegations had been concocted by those persons who themselves were committing theft and implicating other persons. Thereafter, the departmental authorities appear to have reported the case to the Police. The Superintendent of Police, Malir Division, Karachi, after having the matter investigated by the Airport Police Station, Karachi, reported that : "During the course of investigation, all the abovenamed Chowkidars were thoroughly interrogated but none of them was found involved in the abovenoted theft cases."
' Similarly, on 29th January, 1980 the Deputy Superintendent of Police, C.I.A., Karachi reported that "no material evidence could be had against the Chowkidars" and, therefore, all the files of the cases had been returned to Anti-Burglary Squad. Malir Division, Karachi, for further investigation.
Accordingly, he advised the department that further report in the matter may be asked for from the Superintendent of Police, Malir Division, Karachi. Thereupon, the department once again took up the matter with the Superintendent of Police, Malir Division on 15th March, 1980 and 26th March, 1980. The Superintendent of Police replied to the query, stating that "all possible efforts were made to work out the cases but in vain, therefore, the cases have been disposed of as final report Untraced." However, prior to these developments and after the submission of his explanation, the Appellant was informed by the Deputy Director (Admn.) of the Department of Plant Protection that his explanation to the charge-sheet had been carefully examined and found unsatisfactory. He was further informed : "It is a fact that theft took place due to his negligence towards duty and it could be avoided if he was alert and vigilant in his duty. As a result of his negligence Government have to suffer a great financial loss. He is further informed that since he was placed under suspension no theft has taken place. It proves that theft took place due to his carelessness and negligence in duty."
10. Meanwhile, some time after his suspension and issuance of show-cause notice on 26th April, 1978 the Appellant had reported to the Chief Martial Law Administrator that theft of articles like typewriter, fan, wireless board, batteries, cutouts and coils etc. Had been carried out with the connivance of higher officers, including the Joint Director, Deputy Director, Store Officer, Driver and others, but the Chowkidars had been falsely implicated to protect the real culprits. In spite of these developments, the show-cause notice already referred to was served on 3rd February, 1979 to which a reply was sent by the Appellant. In spite of that, by an order, dated 30th April, 1980 i,e, one year and 4 months after the show-cause notice, a new Enquiry Officer was appointed to conduct proceedings in the theft cases and the Appellant and the other Chowkidars (all under suspension since 26th April, 1978) were required to appear before the Enquiry Officer on 5th May, 1980. The Appellant and other Chowkidars replied by a joint application, dated 5th May, 1980 that prior to this, they had gone through one departmental enquiry and two enquiries by the Police and that as a result of the Police enquiries, which had been carried out at the instance of the department itself, they had been found to be innocent. There was, therefore, no justification for further enquiry and, accordingly, they were unable to attend the enquiries to be held on 5th May, 1980. In reply to this joint application, the Chowkidars were informed that Police enquiry and departmental enquiry were two different things and, therefore, they should appear before the Enquiry Officer on 14th May, 1980 without fail. Otherwise, they were warned, the enquiry would be completed in their absence and finalized ex parte. After receipt of this communication, the Chowkidars once again represented that they were unable to appear before the Enquiry Officer on the new date and that they were being subjected to harassm ent for the last two years without any justification. Thereafter, a second show-cause notice was served on all the 7 Chowkidars in which it was stated, inter alia, as under : "Their explanation in reply to the charge-sheet and first show-cause notice were already examined and found unsatisfactory. It is proposed to remove them from Government service from the date they were placed under suspension viz. 23rd April, 1978 under Government servants (Efficiency and Discipline) Rules, 1973 for misconduct. Before the penalty is imposed they are given a chance to show-cause within 10 days from the date of issue of this memo. As to why they should not be removed from Government Service. If they fail to submit a satisfactory explanation within the stipulated time the case will be finalized and they will be removed from Government Service w,e,f, 23rd April, 1978."
11. Instead of submitting any explanation, the Appellant and 4 other Chowkidars jointly submitted an application on 1st June, 1980 which is reproduced below : " Reference your Memo. No, 1-28/78-E. III, dated 24th May, 1980. Sir, ' As earlier stated by us, a Departmental Inquiry has already been conducted in this case through Mr. S. M. Sawaleh, Deputy Director (Accounts) who was appointed Inquiry Officer. After that, Department banded over the case to the Local Police and the C.I.A. They also declared that none of the Chowkidars suspected or involved in any of the theft cases. Accordingly Department should have re-instated us rather than again conducting a fresh Inquiry which is not permissible under the rules. But since the Department has already decided to remove us from service, the fresh proceedings have been adapted which is again irregular and wholly unjustified. In such circumstances there is no point for us to appear before the Inquiry Officer.
We however reserve our right to contest our removal from service in the C. M. L. A. Secretariat or the Services Tribunal at the entire cost and risk of the Department."
12. Thereafter, the impugned order was passed on 10th June, 1980 which reads as under : "Being found guilty of misconduct under Rule 4 (b) of Government Servants (Efficiency and Discipline) Rules, 1973, Mr. Muhammad Abdullah son of Mr. Inayat Ali, Chowkidar in the Department is removed from Government service with effect from 13th June, 1980,"
13. The above order, as already mentioned, was appealed against departmentally by the Appellant.
In this appeal, among other grounds, it was stated that some thefts had taken place in the Department which were duly reported to the Police and investigated under section 379, P.P.0 that the Police did not find the Appellant guilty and informed the Department accordingly, but not being satisfied with the report of the Superintendent of Police, Malir Division, Karachi, the Department referred the case to the C.I.A , Karachi for re-investigation, that the C.
1. A. Also did not find him guilty, or in any way involved in the theft cases, and submitted their findings to the Department accordingly. Nevertheless, the Department kept him under suspension and subsequently, removed him from service. It was also mentioned that the Department had conducted enquiries through the Deputy Director (Accounts) and thereafter, suspended the Appellant and 6 other Chowkidars and handed over the case to the Police. On the basis of these facts, the Appellant claimed that, since the Police had absolved him of the charges of theft, alongwith other Chowkidars, there was no justification for a second departmental enquiry through another Enquiry Officer. In the circumstances, it was pleaded by the Appellans that the action taken against him was revengeful and unjustified and fit to be set aside.
14. In reply to the departmental appeal, appellant was informed by a memo., dated 30th November, 1980 as under :
(a) Before removing the Appellant from service, the (b)procedure as prescribed under the Rules was fully adopted. In order to investigate the cases thoroughly, an Enquiry Officer was appointed and the Appellant was directed to appear before the Enquiry Officer on 5th May, 1980.
(c) The Appellant refused to appear for any enquiry, vide his application, dated 5th May, 1980.
(d) Thereafter, he was again directed by a memo., dated 7th May, 1980 to appear before the Enquiry Officer on 14th May, 1980. He was simultaneously warned that, if he failed to appear before the Enquiry Officer on the above date, the enquiry would be completed in his absence and the case finalized ex parte.
(e) The Appellant again refused in writing to appear before the Enquiry Officer.
(f) Since he had persistently refused to appear before the Enquiry Officer, a show-cause notice was served on him on 24th May, 1980 informing him that his explanation, in reply to the charge-sheet and first show-cause notice, had already been examined and found unsatisfactory and, therefore, it was proposed to remove him from Government service for misconduct. Before, however, the penalty was imposed, he was given a chance to show-cause within 10 days as to why he should not be removed from service. Since no cause was shown, he was removed from service by the impugned order, dated 10th June, 1980.
15. The case of the Appellant has been clearly stated in the departmental appeal, dated 22nd October, 1980 and the same has been elaborated in the memo. Of Appeal before us and further reiterated during the hearing. So far as the Respondent Department are concerned, the gist of their stand is contained in the reply, dated 30th November, 1980 which has already been given above.
The same grounds which have been stated in the reply to the departmental appeal have also been urged in the written objections filed before us and were also reiterated at the time of hearing.
16. Considering the facts and circumstances of the case narrated above and the arguments and contentions of the parties, we have no hesitation in coming to the conclusion that the action of dismissal from service taken against the Appellant and other Chowkidars was not based on any reliable grounds either of fact or of law. At no stage was the case against the Appellant brought home to him and the material on which it was based explained and clarified. Some theft had taken place, when how and in what circumstances, we do not know. However, a meeting of the departmental officers was held and a decision taken that all the Chowkidars who were on duty on the dates of the thefts should be suspended from service and proceeded against the dismissal under the Efficiency and Discipline Rules, This decision was conveyed on behalf of the departmental head and action taken as already narrated earlier. There is no doubt that the suspension of the Chowkidars was not justified by any material evidence against them. Even subsequently, no evidence was collected or obtained to incriminate the Chowkidars in the theft cases alleged to have taken place. What is worse, even the details of the articles stolen, their numbers and valuation, the circumstances in which the thefts were detected the persons who detected them, the time and manner of the reporting of these cases and the persons to whom they were reported, the witnesses to the detection of the theft and to their reporting are not known and are not on the record. The Chowkidars who are alleged to have been responsible for these thefts through their negligence were also not even told with respect to each theft as to how and in what manner the particular theft could be attributed to their negligence. In these circumstances, it passes our C understanding as to how the concerned authorities expected the chowkidars to offer explanations or come forward with their defence. If they were to defend themselves, they should have been confronted with a clear-cut prima facie case, as well as with evidence in support of the same. Since nothing of the sort was done, the explanation which was repeated by all of them and to which no convincing rebuttal was offered on behalf of the Department is quite understandable and reasonable. Unless other evidence were collected, there was no point in punishing the Appellant and his colleagues on the basis of the supposed failure of the Chowkidars to offer a satisfactory reply to the show-cause notice issued to them. In fact, from a very thorough scrutiny of the documents including the entire departmental file relating to these cases, were fully satisfied that the concerned officers of the Department were either unable or uninclined to find out the real culprits of these theft cases. Therefore, they bit upon the easiest way out by proceeding against the Chowkidars for negligence of duty. Even in this respect, they did not collect sufficient information to make out even the semblance of a case of negligence. Whether, they did this through sheer incompetence or purposely with a view to protect the real culprits, we are unable to say. But, we cannot ignore the obvious fact that the Chowkidars had, in their replies to the show cause notices, as well as in the petition addressed to the President of Pakistan, levelled serious and very definite and concrete allegations against some officers of the Department, mentioning them by name from which an impression is created that the action taken against the Chowkidars may not have been entirely above-board.
17. Another ground for impugning the action taken against the Appellant and his colleagues is that, while the proper course would have been to investigate the matter and find out the person or persons who committed the offence, the Department thought that, by placing the Chowkidars under suspension and proceeding against them under the Efficiency and Discipline Rules, they would be able to collect the necessary information that would enable them to deal with the real culprits. In our opinion, if the idea was to find out the truth about these thefts, the correct course would have been to have the matter investigated either by a departmental committee or by the Police. From the departmental file, we find that, without any action having been taken to find out the facts, the Chowkidars were placed under suspension and served with show-cause notices wrongly marked as charge-sheet. But, in the Memo. Of Appeal, it has been alleged that a Committee to investigate the matter, headed by the Deputy Director (Accounts), had been set up and the Chowkidars asked to appear before them on 9th April, 1978. The Appellant claims to have appeared before the Committee which carried out the investigation. Neither the results of the investigation are known nor do the noting on the departmental file indicate what happened in the Committee and subsequent to its meeting. The statement has, however, not been denied by the Respondent-Department that such a Committee was set up and the Chowkidars required to appear before it. Nevertheless, the show-cause notice issued on 26th April, 1978 is indicative of the fact that the concerned authority had come to a definite conclusion that the Appellant was guilty of inefficiency and negligence and he had also tentatively decided to remove him from service.
After the Appellant had replied to the show-cause notice, the authority should either have accepted the reply and vacated the suspension order and put the Appellant back on duty or rejected the explanation and removed him from service. But, although the Deputy Director (Admn.) had found the explanation given by the Chowkidars as unsatisfactory, no doubt, on the basis of certain assumptions which are not quite convincing, the head of the Department put off a decision till the receipt of investigation report by the Police. After receipt of the Police reports clearing all the Chowkidars, the question was examined whether the Chowkidars were to be re-instated or an officer was to be appointed to investigate and submit the report to the Authorized Officer. The Authorized Officer decided that investigation was not necessary in the light of the Police reports.
But, since the Chowkidars had been charge-sheeted and their explanations were available, action was to be taken on the basis of these. He was satisfied that thefts had taken place due to their negligence on duty and these could have been avoided if they have been alert in their duty. He, therefore, directed that they should be asked to explain why their increments for one year should not be stopped. However, before action could be taken, as per his direction, he changed his mind and decided to refer the matter to the Ministry. The Ministry in reply directed that "strict disciplinary action should be taken if they are found guilty and leniency should not be exercised."
18. On the basis of this directive, the Authorized Officer noted that there was no doubt that the Chowkidars were responsible for the theft which took place when they were on guard duty. He, accordingly, decided to serve show-cause notices on them from removal from service. A second show-cause notice was, accordingly, issued on 30th January, 1979. In this show-cause notice, the previous one issued on 20th April, 1978 was referred to as a charge-sheet and the explanation given by the Appellant was stated to have been found unsatisfactory. Ignoring the wrong expression of charge-sheet used, we can take it that the cause shown against the original notice was found to be unsatisfactory and this was a final show-cause notice before actual infliction of the proposed penalty. However, nothing seems to have happened for more than a year after this, when, once again, as already noted, they were required to appear before an Enquiry Officer appointed by the Department, under rule 5 read with rule 6 of the Government Servants (E & D)
Rules, 1973, "to conduct proceedings in the case of Chowkidars involved in theft cases." This was a complete departure from the previous proceedings and an altogether new development. Hitherto, the entire proceedings had been conducted on the assumption that the guilt of the Appellant and other Chowkidars had been established and they were only required to offer their explanations.
Their explanations having been found unsatisfactory, they were only required to show-cause against the punishment decided upon. However, no punishment order was actually passed on the basis of the alleged finding. But, now they were suddenly required to appear before an Enquiry Officer appointed under the Efficiency and Discipline Rules. For this purpose, they should have been properly charge-sheeted and required to present their defence before the Enquiry Officer, who should have confronted them with the evidence against them. But, nothing of the sort was done and they were merely required to appear before the Enquiry Officer. The Chowkidars, who were under suspension since 23rd April, 1978 and had been subjected to investigation and interrogation by the Police more than once and by a Deputy Director of their own Department earlier, had good reasons for resenting this direction and they refused to appear before the Enquiry Officer. Although their action in refusing to appear before the Enquiry Officer cannot be justified on disciplinary grounds, we cannot but concede that ground for refusal was provided to them by the departmental authorities. If the departmental authorities wanted to punish them for indiscipline, they should have charge-sheeted them on this ground and taken action accordingly. But, instead of doing so, they utilized their absence from the proceedings as sufficient ground for punishing them on the charge of inefficiency and negligence of duty. The impugned order, no doubt, says that the Appellant had been found guilty of misconduct. But no finding to this effect was recordel by the Enquiry Officer. Nor were the grounds and the evidence on which the finding was arrived at mentioned. Even the punishment recommended by the Enquiry Officer was not noted on the file. In fact, the impugned order is merely a repetition of the earlier decision contained in the second show-cause notice already issued to the Appellant. It is, therefore, clear that the penalty proposed in the two show-cause notices and the one actually inflicted through the impugned order were the result of a pre-determined intention of removing the Appellant and other Chowkidars from service, on the basis of the meeting of the officers held after the detection of the thefts, which was reinforced by the advice given by the Ministry that no leniency should be exercised in dealing with those found guilty. Evidently, in pursuance of their own decision to punish the Appellant and his colleagues, which was encouraged by the instructions of the Ministry, the concerned authorities of the Department, showed no leniency in dealing with the Appellant and his colleagues. But, they certainly did not legally find them guilty of misconduct and, therefore, they were far from justified in inflicting the punishment that they did.
19. Taking an overall view of the entire case, we have no other option but to hold that the departmental action throughout has been not only irregular and flagrantly violative of the riles laid down but characterised by a great deal of zaberdasti.
20. In the absence of any material to incriminate the Chowkidars, in the face of Police reports completely exonerating the Appellant and his colleagues, and in view of the fact that the Appellant and others had, in their defence, evidently explained why they could not be suspected of being associated with the thefts, we cannot uphold the departmental view that, without adducing any concrete evidence, they could reach the conclusion that these thefts could not have been committed without the connivance of the Chowkidars. We cannot also condone their action in keeping the Chowkidars under suspension for more than two years without investigation of the thefts, after the Police had already, much earlier, given them a clean chit.
21. It is also relevant to note that, in a case like this, where the charges were neither specific nor self-evident, resort to the summary procedure of rule 5 (I) (iii) of the Efficiency and Discipline Rules was obviously unjustified and uncalled for. It was moreso when the charges were denied and counter-allegations levelled. For the Respondent-D Department, therefore, to have punished the Appellant, on the plea that the explanation offered was unsatisfactory, was nothing short of travesty of justice.
22. In the light of the above, we hold that the appeal trust succeed and, therefore, we .
23. The appellant should be re-instated in service with effect from the date of his suspension. He should be allowed full pay for the period of his suspension. But, as regards his pay for the period he remained out of service, arrears may be paid to him only to the extent of the difference between his entitlement and the income that he actually derived from any gainful occupation that be undertook during the said period.
24. No order as to costs.
25. Parties to be informed.