1. ' KH. GHULAM QADIR (MEMBER).-This service appeal by appellant Muhammad Rafique, a former lecturer in the Education Department, is directed against Government Order No, S & G A D/3865.72/78, dated 28th October, 1978 whereby the appellant was removed from service on the charge of misconduct. Brief facts which culminated in the filing of this appeal are that the appellant was employed in the Education Department as a Lecturer under the Government respondent in Azad Jammu and Kashmir till 28th October, 1978, his services were placed at the disposal of the Azad Jammu and Kashmir Board of Intermediate and. Secondary Education, Mirpur where he discharged the duties of a Secrecy Officer. On receipt of certain allegations against the officials of the said Board of Intermediate and Secondary Education, the respondent Government appointed a Commission of Inquiry under section 3 of the Commission of Inquiries Act for the purpose of probing into the allegations relating to the affairs of the said Board. Mr. Justice Raja Muhammad Khurshid Khan, Judge of the Azad Jammu and Kashmir Supreme Court was appointed as the Commission for the said purpose who after making necessary enquiries, made a report to the Government, in consequence of which the Deputy Secretary, Services and General Administration Department issued a show-cause notice to the appellant on 26th. August, 1978 under rule 6 (b) of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977. The show-cause notice contained a single charge to the effect that during his tenure as Secrecy Officer of the Board of the Intermediate and Secondary Education, Mirpur, he did not keep strict control over the subordinates which resulted into leakage of question papers presumably with his complicity. The show-cause notice required the appellant to explain as to why action should not be taken against him under Rule 4 (b) of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 as he was found guilty of misconduct and inefficiency. The appellant submitted his reply to the show-cause notice denying the charges levelled against him.
2. The competent authority granted a personal hearing to the appellant and being dissatisfied with the explanation of the appellant, ultimately passed the impugned Government Order as a penalty on the ground of inefficiency and misconduct. The appellant submitted a review petition challenging the correctness of the impugned order but the same was rejected on 5th February, 1979. Having exhausted departmental remedy under rules, the appellant came up with this appeal before the Service Tribunal on the following grounds :
(1) That the Commission of Inquiry had no authority to deal with a civil servant in respect of his terms and conditions of service and the impugned order could not be based on the report of the Commission.
(2) That the proceedings of the Commission were ex parte, secret and whimsical.
(3) That the Government respondent did not apply its own independent mind to the material on record on the basis of which the charge was framed and rather acting under the influence of the report of the Commission of Inquiry, mechanically passed the impugned order.
(4) That the charge of inefficiency was inapplicable to the appellant but the competent authority misconstruing the charge, illegelly awarded the penalty on the basis of inefficiency.
(5) That the charge as contained in the show-cause notice was vague and lacked in essential particulars. Moreover, the appellant was not afforded a reasonable opportunity of showing cause in violation of sub-rule (3) of Rule 6 and the rule of natural justice.
(6) That the competent authority, though authority as well as authorised officer in the case of the appellant, did not exercise the powers of authority and authorised officer distinctly in violation of the rules applicable to the appellant.
(7) That the facts of the case and the interests of justice demanded that the procedure laid down under rules 7 and 8 should have been adopted and the enquiry should have been got made by enquiry officer or enquiry committee but the authority. Contrary to the rules adopted a shorter course arbitrarily and capriciously according to its whims which has resulted in injustice to the appellant. Moreover, sub-rules (3) and (4) of Rule 6 of the Efficiency and Discipline Rules, 1977 are ultra vires and void on account of their inconsistency with Fundamental Right No, 15 of the Interim Constitution Act, 1974 which guarantees equality before law and as such the proceedings taken under these rules are void ab initio.
(8) Lastly, that the penalty of removal from service was excessive in nature.
3. ' In view of the above grounds, the appellant has prayed that the impugned order be set aside and the appellant be reinstated to service with effect from the date of his removal with all back benefits.
4. ' The respondent/Government filed a written statement through counsel wherein it has been contended that the charge as stated in the show-cause notice was held proved beyond any iota of doubt and, consequently, the appellant was rightly punished for inefficiency and misconduct.
5. Therefore, it was prayed that appeal be rejected as without any force.
6. ' The parties did not lead any evidence in the case on merits with the result that the case was closed for arguments on legal points. The learned counsel for the parties were heard and in the interest of justice the parties were asked to place on file written arguments also and consequently both the parties filed written arguments in detail.
7. ' The summary of the arguments advanced by the learned counsel for the appellant is reproduced as under
(1) That the Government could not act under the Commission of Inquiry Act, 1956.
(2) That the Commission of Inquiry was illegally set up because it was not required to make inquiry for a definite matter of public importance as required under the Act.
(3) That the. Commission did not examine any person on oath during the inquiry.
(4) That the Commission illegally used the answer of the appellant against him which was made in reply to any question put by the Commission during the inquiry.
(5) That the Commission of Inquiry Act, 1956 is silent about the effect of an inquiry conducted by a Commission under the said Act.
(6) That the Commission conducted proceedings in gross violation of the rules of natural justice as the appellant was not informed about the adverse material used against him and no witness was examined in his presence.
(7) That it was illegal to appoint a Commission of inquiry for disciplinary proceedings against a civil servant in presence of Azad Jammu and Kashmir (Efficiency and Discipline) Rules, 1977.
(8) That the respondent, who was both Authorised Officer as well as authority in the case of of the appellant, did not independently apply its mind as authorised officer as required under sub-rule
(2) of rule 6 of the Efficiency and Discipline Rules to determine whether the charge was proved and rather was influenced by the report of the Commission, which fact by itself has vitiated the impugned order.
(9) That the impugned order of removal from service was illegal because :
(a) The copy of the report of the Commission of inquiry was not supplied to the appellant ;
(6) That the charge was vague and lacking in essential particulars.
(10) That in accordance with rule 6 (3) of Efficiency and Discipline Rules, 1977, the Authorised Officer failed to make any decision on record as regards an inquiry to be conducted through an inquiry officer or inquiry committee and thus the appellant was deprived of the benefit of Rule 7 of the said Rules which provides an elaborate and fair procedure to be adopted during the inquiry proceedings. The shorter procedure provided under rule 6 (3) is arbitrary and whimsical in nature and is adopted only when facts of the case or the interests of justice so require but in the case of appellant the facts of the case are such that ends of justice could be served only if a proper and a thorough inquiry as provided under rule 7 was conducted. In this behalf PLD 1981 (C S) 877 was strongly relied upon wherein it was held that in cases of misconduct it was not open to the authorities to dispense with the regular inquiry and to adopt a shorter course on mere show-cause notice.
8. ' Lastly it was vehemently contended that sub-rules (3) and (4) of rule 6 of the Efficiency and Discipline Rules which empower the authorised officer to dispense with the elaborate and fair procedure of inquiry by an officer or inquiry committee are ultra-Wes and void on account of their being inconsistent with the fundamental right No, 15 of the Interim Constitution Act, 1974 which provides equality before law. Although class legislation is permissible under law yet this power is subject to three important conditions, that is to say, that :
(1) Classification should be reasonable and rational,
(2) Classification should be done by the law itself, and
(3) that definite guidelines be laid down for such classification leaving no room for pick and choose. But the above conditions are not fulfilled and as such these provisions of Rules are liable to be set aside as contrary to constitutional guarantee.
9. ' Now we would proceed to take up all the contentions advanced by the learned counsel for the appellant one by one for discussion and determination in the light of the record and relevant law.
10. The arguments Nos, 1 to 7 mentioned above relate to the constitution of the Commission of inquiry and its proceedings during the inquiry against the appellant. The Commission of inquiry was appointed by the Respondent-Government to probe into certain complaints pertaining to the affairs of the Board of Intermediate and Secondary Education, Mirpur in general and to the responsibility of the officials responsible for any dereliction in duty. The Commission, after making necessary inquiries submitted report to the Government expressing its opinion on the terms of reference. In our considered opinion the purpose and object of the report of the Commission was only to satisfy the Government whether there was any prima facie proof against any of the officials of the Board upon which proceeding could be initiated against the defaulters under the Efficiency and Discipline Rules, 1977 and as such the report of the Commission has no such intrinsic legal value so as to be used as evidence against any defaulter. Thus it would be sheer waste of time and energy if irrelevant contentions relating to the Commission or its report are discussed and determined because for the purposes of decision of this appeal it is immaterial whether the Commission of inquiry observed or followed any rules or principles of natural justice in conducting inquiry because the report of inquiry Commission will not and cannot in any way be legally read into evidence or used against the appellant. In this view of the matter we do not feel inclined to express our opinion on the contentions which have no legal bearing on the case of the appellant and as such the above points Nos, 1 to 7 are rejected as irrelevant and unnecessary.
11. ' Having disposed of points Nos, 1 to 7 as indicated above we would now like to first advert to contention No, 11 which pertains to the legality and dires of sub-rules (3) and (4) of Rule 6 of the Efficiency and Discipline Rules, 1977. The contention of the learned counsel for the appellant is that sub-rules (2) and (3) of Rule 6 not only invest arbitrary, unguided and uncontrolled powers in the authorised officer to make a decision but are fundamentally ultra direst and illegal as being in direct conflict with Fundamental Right No, 15 guaranteed under Azad Jammu and Kashmir Interim Constitution Act, 1974 which provides a right of equality before law to every citizen of the State. On the other hand the contention of the learned counsel for the respondent is that the sub-rules referred to above do not suffer from any legal flaw or infirmity because these rules difinitely provide reasonable and rational classification and that class legislation is permissible under law. The learned counsel for the respondent relied on AIR 1953 SC 404 and AIR 1958 SC 538 in support of his contention.
12. We have given our serious consideration to the contention of learned counsel for the parties and are of the firm view that sub-rule (2) certainly provides a guideline for the authorised officer to come to a decision whether an inquiry should be conducted through an inquiry officer or inquiry Committee. The criteria for the decision are "the facts of the case and interests of justice" and it is left to the sound and discreet judgment of the authorised officer to see whether the facts of a particular case are such as to justify a detailed inquiry as envisaged by Rule 7 of the said rules and if the authorised officer decides that facts and circumstances of the case demand that an inquiry ought to be made then in the interest of justice, the authorised officer shall direct that inquiry be conducted under rules. But where the authorised officer is of the opinion that the facts of the case or the interests of justice do not call for an inquiry then a shorter course will be adopted by him as provided in sub-rule (3) of rule 6. Thus, a rational and reasonable classification is provided by sub- rule (2) itself which serves as a guideline for the authorised officer and thus little room is left for the authorised officer for acting arbitrarily or according to his own sweet will or whims so as to enable him to make a matter of pick and choose. We have already dealt with this legal aspect of the matter in detail while deciding three consolidated service appeals entitled' Hanif Akhtar Ranja and Mahmood Ahmed Lodhi etc., decided on 17th June, 1983 whereinafter making a comprehensive survey of the matter in the light of various rulings we have held that there is nothing wrong in sub- rules (2) and (3) of Rule 6 of the Efficiency and Discipline Rules, 1977 as contended by the learned counsel for the appellants. Hence this contention of the learned counsel for the appellant is repelled as without any force or substance for the reason that the said rules do not come into conflict with the Fundamental Right No, 15 of the Interim Constitution Act.
13. ' Having disposed of contention No, 11 as discussed above now we take up another contention of the learned counsel, (Serial No, 10) that the authority did not apply its mind to the facts of the case while deciding whether an inquiry should be made and, instead, working under the dominant influence of the report of Commission of Inquiry perfunctorily decided to issue show-cause notice under rule 6 (3) of the Efficiency and Discipline Rules thereby causing prejudice to the appellant as he was deprived of the benefit of a detailed inquiry under rules 7.
14. ' We have given our serious thought to this argument of learned counsel for the appellant and are convinced that there is certainly considerable weight and force in this connection. There is only one charge in the show-cause notice to the effect that the appellant was guilty of inefficiency and misconduct as be failed to have strict control over his .Subordinates which resulted into leakage of question papers presumably with his complicity. This charge consists of two allegations, namely inefficiency and misconduct. The word "inefficiency", for purpose of disciplinary actions, is defined under section 3 Efficiency and Discipline Rules, 1977 and according to the meaning assigned to this word inefficiency means bodily or mental infirmity or failure to pass departmental examinations as stated under sub clauses (ii), (iii), (iv) and (v) to clause (a) of section 3. Thus 'inefficiency' as described under section 3, as a ground of penalty, would necessitate proof to establish the same if it is C intended to impose a penalty on this score. Besides the allegation of leakage of question papers with or without the complicity or connivance of the appellant would also require an inquiry whether the appellant was himself directly responsible for the leakage or it was simply a matter of loose control over his subordinates. If it was a matter of lack of control then which questions papers were leaked out and to which candidates such papers were provided. Furthermore, as alleged by the appellant in his explanation that question papers were straightaway produced before the Chief Secretary, was it a result of conspiracy of some officials to disrepute the Director of Education, namely, Mr. Abdul Latif Ansari who had succeeded the former Director of Education Mr. Dr. Nazir Hussain Shah. Whatever the reality, it would come to light only after making an' inquiry but the authorised officer failed to apply his mind to the facts of the case and to direct an inquiry under rules before issuing a show cause notice. The kind of the misconduct alleged against the appellant, if held proved, would certainly call for a major penalty and it would be undoubtedly injustice to the appellant if he is held guilty of misconduct without proper inquiry and without allowing him an opportunity of defence.
15. Under the circumstances, we feel that a lapse on the part of authorised officer in not directing an inquiry has resulted in miscarriage of justice which can be cured and rectified by ordering remand of the case. As such it is a fit case for remand and in consequence we set aside the impugned order of removal from service of the appellant and remand the case back to the competent authority for proceeding in accordance with rule 6 (2) of the Efficiency and Discipline Rules.
16. ' In view of the remand order we do not deem advisable to express our opinion on any other objection of the learned counsel for the appellant.