1. ' MUSHTAQ ALI NAZI (CHAIRMAN). - The appellant, an Assistant Registrar, Co-operative Societies, has preferred this appeal, against the order of Secretary, Labour and Co-operation, reducing the appellant one stage below the then stage of his time-scale, for a period of two years and the order of Chief Secretary dismissing his appeal.
2. ' The facts of the case in brief are that the appellant was working as Assistant Registrar, Co- operative Societies, with effect from 25th August, 1977 with a total service of 24 years in the Co- operative Department. He was transferred on deputation from 18th October, 1979 as Assistant Registrar, Sind Provincial Co-operative Bank Limited, Hyderabad, in the Recovery Cell. He received a show-cause notice, dated 16th February, 1981 from the Administrator of the Bank alleging misconduct on his part in the discharge of his duties, since he was not able to effect 25% recoveries from 18th May, 1980 to 30th June, 1980, his recovery being only Rs, 59,99,563 against the total demand of Rs, 3,22,78,406 outstanding on the date he resumed his office in the Recovery Cell, which was negligible. He was, therefore, issued a show-cause notice and asked whether he wished to be heard in person.
3. ' The appellant replied to the show-cause notice that instead of appreciating his work and performance in difficult circumstances and his efforts to effect recovery the recoveries were being compared with the total outstandings of the bank. The appellant prayed to be heard in person.
4. ' The appellant by order, dated 29th December, 1981 was awarded the penalty by Secretary, Labour and Co-operation in his capacity as the authority reducing him one stage below the then stage of his time-scale for a period of two years. It was stated in the order that misconduct had been proved against the appellant.
5. ' The appellant then filed departmental appeal before the Chief Secretary, Government of Sind, but the said appeal was dismissed.
6. ' He has then preferred this appeal under section 4 of the Sind Service Tribunals Act, 1973.
7. ' The department in their written statement have stated that it was not considered necessary to hold inquiry and no personal hearing was given as the same had not been asked. It has been admitted by the department that in the show-cause notice word 'misconduct' had been inadvertently shown and used for 'inefficiency', but no prejudice has been caused to the appellant thereby.
8. ' Thus on the one band the appellant has been found guilty and punished for misconduct by order, dated 29th December, 1981, stating that charge of misconduct had been proved ; on the other hand, it has been stated by the same department that misconduct had been inadvertently used for 'inefficiency'. The term 'inefficiency' is separate and distinct from the term 'misconduct', which has been defined in the Efficiency and Discipline Rules. Under Rule 2 (4) misconduct' means conduct prejudicial to good order of service discipline or contrary to West Pakistan Government Servant (Conduct) Rules, 1966 or unbecoming of an officer and a gentlemen and includes any act on the part of a civil servant to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Government or any Government officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of service of a civil servant ; while inefficiency would be merely lack of proper action equivalent to negligence. The appellant has thus been charged and penalised for misconduct, though, afterwards it has been found that he was not guilty of misconduct but only inefficiency. He has been awarded a major penalty for mere inefficiency. The show-cause notice was, therefore, had and instead of mentioning particular penalty it was propose to impose on the appellant "any of the penaltie described under Rule 4". The penalty was thus not prescribed and the question was left vague. In the absence of a definite show-cause notice defining offence and the proposed penalty, the order of punishment cannot be sustained.
9. ' It may also be pointed out that in the notice, dated 6th October, 1981 it was mentioned in para. 3, last line that he (appellant) may also state if he wishes to be heard in person. In reply to the notice in the last line the appellant stated "I further pray to be heard in person", but admittedly as per written statement no personal hearing was allowed to the appellant at any stage. This right of the accused officer has always been considered to be of paramount importance and he could not be deprived of the same. In Abdul Hamid v. The Province of West Pakistan , it was held by S. A. Rehman J. Under similar circumstances, that he should have been given a chance of being heard personally apart from the written explanation submitted by him. That this infirmity vitiated the order of removal passed subsequently, since he was not afforded the full opportunity to defend himself. In a similar case of Zafar Muhammad Khan v. Islamic Republic of Pakistan it was observed that where opportunity of personal hearing was not afforded to the accused, the order of dismissal was illegal. In a recent case of Sohrab Khan Kalwar v. Secretary to the Government of Sind, Department of Food it was observed by Anwarul Haque, C. J. "that the appellant was clearly required to state' whether he wanted to be heard in person and in his reply he had answered this question in the affirmative. In replying, therefore, of the question whether a personal hearing is mandatory under rule (2), it is clear that in the present case the option given to the appellant in the matter of personal hearing could not be denied to him without sufficient cause. As already stated, there is no indication on the record that the authorised officer was concious of his obligation arising under the show-cause notice served by him on the appellant. As a result, the appellant was clearly deprived of the opportunity to show that the allegations against him were without1 2 3 foundations". On this view of the matter the order of removal from service passed by the Provincial Government against the appellant was considered to be vitiated. Their Lordships of the Supreme Court declared this order to be without lawful authority and of no legal effect.
10. ' The proceedings against the appellant are accordingly remitted with a similar declaration to the authorised officer, with option to proceed afresh against the appellant by giving proper show- cause notice mentioning the accusation and then submitting his case to the Secretary, Labour and Co-operation for final orders in the light of the explanation of the appellant. The appeal is accepted to this extent and the parties are left to bear their own costs. PLD 1963 SC 460 PLD 1968 Lab. 416 PLD 1980 SC 279