' S. ABDUL JABBAR KHAN (CHAIRMAN).-Shamsher Ali Khan has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded Commandant Border Military Police, Dera Ghazi Khan and Deputy Commissioner, Dera Ghazi Khan, as respondents.
2. By virtue of the appeal he has prayed that the orders dated 12th December, 1979, 10th August, 1980 as well as dated 6th April, 1981 be set aside.
3. Brief facts of the case are that while the appellant was serving as Sowar at B. M. P., Post Mamdani, respondent No, I issued a show-cause notice to the appellant, dated 28th March, 1979 as to why the appellant should not be awarded one of the punishments as provided by section 10 of the North- West Border Military Police Act, 1904. An inquiry was entrusted to Political Tehsildar, D. G. Khan, who recorded the statements of three witnesses including Risaldar B. M. P. D. G. Khan. The said officer submitted the report to respondent No:1 on which the respondent. 1 ordered on 12th July, 1979 that a show-cause notice for major penalty be issued. Respondent No, 1 issued notice on 23rd June, 1979 as to why one of the penalties provided by Rule 5 (a) of B. M. P, Service Rules, 1935, should not be inflicted and directed the appellant to submit his statement within 7 days. He further appointed Malik Muhammad Afzal, Political Naib-Tehsildar as Inquiry Officer. The said Enquiry Officer, vide his report submitted that as he had formed some opinion against the appellant, therefore, it will be appropriate that this inquiry should be entrusted to another officer and sent the file to respondent No,
1. The respondent No,
1. On receiving the file from the Enquiry Officer, instead of appointing another Enquiry Officer called upon the appellant to appear on 12th September, 1979. The appellant appeared as directed and explained to him that he had fallen ill and had submitted M. C. The explanation did not find favour with respondent No, 1 who dismissed the appellant from service.
Aggrieved against that order the appellant filed an appeal before Respondent No, 2 but the same was rejected vide his order, dated 10th August, 1980. The appellant filed a revision petition before the Commissioner, Multan Division, which was dismissed by him on 6th April, 1981 on the ground that no revision was permissible under the B. M. P. Rules, 1935. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance.
5. Learned counsel for the appellant has submitted that the procedure adopted by Respondent No, 1 was contrary to the provisions of the Punjab Civil Servants (E & D) Rules, 1975, which was applicable to all the inquiries against all the civil servants including the appellant. It has been further urged that the Respondent No, 1 being authority of the appellant, therefore, he has no jurisdiction to issue a show-cause notice as this function has been expressly defined under rules 5, 6 and 7 of the E & D Rules, 1975. Learned counsel has assailed the authority of the respondent No, 1 on the ground that he cannot combine himself with the functions of Authority as well as that of Authorised Officer. He has also challenged the contents of the show-cause notice by submitting that it did not specify the nature and quantum of penalty, therefore, the same was bad in the eye of law and no proceeding can be taken on the face of the said procedure. It has been further urged that Malik Muhammad Afzal, Political Niab-Tehsildar had expressed his inability to proceed against the appellant as he had formed a biased view against him, therefore, it was incumbent upon respondent No, 1 to hand over the enquiry to some other officer who had no such bias and to hold enquiry independently of the said earlier enquiry.
6. With regard to the merits of the case learned counsel has submitted that the appellant had never been absent from duties and his absence was only due to medical grounds and in this regard he has submitted that a medical certificate from a qualified Registered Medical Practitioner was duly supplied. Despite the fact that the appellant did not receive any information from respondent No, 1 that the leave was not allowed yet he approached the concerned Dafedar and other officers and requested to issue him a docket so that he could get his illness checked from District Hospital, D. G. Khan. His request for the same was never taken into consideration. The appellant has also through his learned counsel, alleged that B. M. P. Risaldar was inimically disposed towards him and wanted his removal from service on one pretext to another.
7. With regard to the point of limitation, learned counsel has submitted that the appellant on the mistaken advice of his counsel, had filed revision petition in the Court of the Commissioner, Multan under B. M. P. Rules, 1935, therefore, the period unto 6th April, 1981 be excluded under section 14 of the Limitation Act. With regard to the further period from 6th April, 1981 to the date of filing his appeal, learned counsel has requested that the same may be condoned as the appellant lives in far flung area of D. G. Khan and had no information about the existence of the Service Tribunal and has filed this appeal. However, he has submitted that as the order was void ab initio, therefore, no limitation runs in his case. He has submitted that he has filed an application under section 5 of the Limitation Act.
8. On the other hand learned District Acctorney has submitted that the appellant absented himself from duties and applied for the grant of leave on false plea of his illness. M. C. So produced by the appellant had to be countersigned by the M. S. D. H. Q. Hospital, D. G. Khan, but the same was not produced, therefore, the plea of the appellant was hardly convincing. Learned District Attorney has also pointed out that the appellant was a habitual absentee and for that reason he had been punished with fine and had also suffered five days quarter guard for 18 days wilful absence from duty. It has been urged that no irregularity has been committed in this case and the appellant had no business to file a revision petition in the Court of learned Commissioner, Multan as such revision was not permitted under the rules. Learned District Attorney has stoutly contested the case and has prayed that the appeal be dismissed, as being without any force.
9. We have given our anxious thought to the arguments advanced by the parties and have perused the inquiry report of Malik Muhammad Afzal, Political Naib-Tehsildar, who was appointed an Enquiry Officer in this case. In the concluding paragraph of that inquiry the Enquiry Officer has observed that as he had formulated opinion, adverse to the appellant already in his mind, therefore, it would be proper that some other Enquiry Officer should be appointed to conduct this inquiry. In view of the said report of the Enquiry Officer, it was incumbent upon respondent No, 1 to appoint another Enquiry Officer, so as to form an independent opinion about the guilt or innocence of the appellant. It is a well-settled principle of law that a person who is appointed as Enquiry Officer against a civil servant, should be a person holding no bias against him and once such Enquiry Officer, clearly expressed his opinion, that he would not be able to hold inquiry as he had prejudged the case of the appellant in his mind, it was absolutely imperative that the inquiry should have been handed over to a person free from any bias against such a civil servant. The failure of respondent No, 1 to appoint another Enquiry Officer and to proceed on the basis of biased inquiry, would render all the proceedings so conducted against a civil servant, as absolutely, null and void.
10. In view of the above procedural flaw which is against fundamental principle of natural justice, we are of the considered opinion that all the proceedings after the said report of Malik Muhammad Afzal, Political Niab-Tehsildar, who was appointed as Enquiry Officer, in this case, stand vitiated.
11. With regard to the point of limitation we are of the confirmed view that once an order is void being against the principle of natural B justice, the point of limitation would not be relevant in such case, as no limitation runs against void order.
12. The result is, we proceed to accept the appeal, set aside the impugned orders and remand the case to the competent authority to hold an enquiry through some independent officer and give the appellant full chance to defend himself and produce his evidence with regard to his illness before the said officer. It is further directed that the appellant be re-instated in service so as to clothe him with the status of a civil servant for the purpose of fresh inquiry. However, the period out of service of the appellant will be treated as extraordinary leave, without pay. It is directed that as it is an old case, inquiry in this case should be completed within three months of the communication of this judgment. Parties will bear their own costs.