1. ' KR. ABDUS SAMAD (MEMBER).-This service appeal under section 4, Azad Jammu and Kashmir Service Tribunals Act, 1975 is directed against the order of the respondent, dated 9th November, 1978 whereby the appellant was awarded the penalty of demotion in the lower grade I. e. Grade-17 N. P. S.
2. The brief facts leading to this appeal are that while the appellant was employed in the service of the respondent and served as Director Food Department between 10th November, 1976 and 21st February, 1977, He was transferred and posted as Officer on Special Duty in the S & G A D, vide Government Order No, S & G A D/3349-55/77, dated 17th February, 1977. In the meanwhile a Commission of Inquiry was set up by the Government under section 3 of the Commisson of Inquiry Act, 1956 for the purpose of probing into allegations relating to certain grants and funds and other allied matters. Food Department was included in the purview of Commission No, 1 headed by Brigadier Iqbal Qureshi. The necessary following order was issued by the respondent in this behalf.
2. ' Azad Government of the State of Jammu and Kashmir Services and General Administration Department, `Muzaffarabad'.
3. Dated : 20th November, 1977 Notification No, S & G A D/SO-1/29-77.-In exercising of the powers conferred under section 3 of the Commission of Inquiry Act, 1956 as applicable to Azad Jammu and Kashmir, the Government of the State of Jammu and Kashmir has been pleased to set up a Commission of Inquiry to probe into the allegations of Acts of corruption, misconduct, nepotisim, favouritsm, inefficiency etc., having been committed in the following departments/institutions/projects :-
(1) Public Works Department and other departments.{{TABLE TEXT}}
(8) Civil Supplies Department.
(2) The Commission will consist of the following :-
(1) Brig. Muhammad Iqbal Qureshi Chairman
(2) Mr. Khalil Ahmed Qureshi Secretary, S&GAD Member
(3) Lt.-Col. Riaz Ahmad Khan Member
(4) Mr. Abdul Ahad Kant Deputy Secretary Secretary
(3) The commission will have following terms of reference :- (a)To examine the record of each department, with reference to the allegations of corruption, inefficiency, nepotism, favouritism etc., levelled against the department, as a whole or individual officials of department concemd and ascertain their validity.
(b) To fix responsibility of corruption, inefficiency etc. If any, decide and make specific recommendation against the official concerned.
4. (c)To pin point any other malpractice that may be discovered during the course of enquiry.
(4) The provisions of sections 5 and 10-A of Pakistan Commission of Inquiry Act, 1956 as applicable to Azad Jammu and Kashmir shall apply to the Commission constituted under this notification.
(5) The commission shall complete its task and submit its report within a period of two months from the date of issue of this notification to the Chief Secretary, Azad Government of the State of J & K.
5. (Sd.)
6. (Khalil Ahmed Qureshi), Secretary S & GAD.
7. ' Copy of the above is forwarded to the :-
(1) Secretary to President, A J & K.
8. (Sd.)
9. Secretary S & GAD.
10. ' The appellant having been transferred from the post of Director, Food with effect from 21st February, 1977 went on long leave from 15th March, 1977 to 24th April, 1978. He was not summoned by the Commission of Inquiry No, 1 at any stage of their enquiry. During his leave the appellant addressed a letter to the Chief Secretary, Azad Jammu & Kashmir Government, which reads as under :- {{URDU TEXT}} ' After this letter the appellant was served with show-cause notice by the Secretary, Services and General Administration with the following charges. The same is reproduced below :- No, S & GAD/7513/78.-Services and General Administration Department, Azad Government of the State of Jammu & Kashmir `Muzaffarabad'.
11. Dated : 29th April, 1978.
12. ' To ' Mr. Iftikhar Hussain Shah, (Ex-Director Food) Now Deputy Registrar Co-operative Muzaffarabad. A 220-D. Satellite Town, ' Rawalpindi.
13. ' Subject : Show-Cause Notice ' The competent authority after considering the report submitted by Commission of enquiry No, 1, as far as it pertains to you has decided to service show-cause notice under section 6 (b) of Azad 'Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 upon you Mr. Iftikbar Hussain Shah (Ex-Director Food) Now, Deputy Registrar, Co-operative (under suspension) on the following charges :-
(1) No proper essential accord of procurement/despatch of wheat and sugar was got maintained by you from 10th November, 1976 to 21st February, 1977 during which period you were Director Food.
(2) Some record which was later provided by the Director Food though scanty, showed the following deficiencies as compared with procurement and their actual receipt at Rawalpindi. {{TABLE TEXT}}
(a) Year Wheat Sugar 1976-77 3,674-11-12 1,328-28-4 Maunds Maunds
(b) 1977-78 upto Dec., 1977 Nil 99-12-2 Maunds
(3) An Audit party had also visited the Directorate of Food and had submitted report that the record of storage office was quite incomplete and under rules not acceptable in audit.
(4) Out of large number of contracts in 1976-77 only 8 were cancelled and retendered though rise in prices/rates was applicable to all, if at all so. Besides no penalty was imposed on the contractors as given in the rules. Your conduct as the then Director Food was not justified in respect of retendering four Stations i. e. Rawalpindi to Nakyal, Kotli, Khuiratta and Khauta, which had led to the Government to pay extra amount to the contractors for your ulterior motives.
2. In the light of above charges you appear to be guilty of misconduct under rule 3 (b) of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 and the competent authority proposes to away the penalty of dismissal from service and as such you are directed to Show Cause why you should not be dismissed from service as laid down in the aforesaid rules.
3. You are required to submit your reply to the undersigned within 7 days of the receipt of the show- cause notice. If your reply is not received within specified period it will be presumed that you have accepted the charges levelled against you and the case will be decided accordingly. After the issue of show-cause notice you are not required to be heard in person under rules. However, to meet the ends of justice you can be heard in person for any clarification with regard to charges, if you state so clearly in your reply to this notice.
14. (Sd.)
15. (Khalil Ahmed Qureshi), Secretary S&GAD.
16. 6th May, 1978 ' The above charges were replied by the appellant in the following form.
17. ' To, ' The Secretary, ' Services and General Administration, ' Azad Government of the. State of J & K, ' Muzaffarabad.
18. ' Subject Show-Cause Notice.
19. ' The show-cause notice S&GAD/7513, dated 29th April, 1978 issued to the undersigned for reply within 7 days of its receipt was handed over to Lae on 30th April, 1978 afternoon.
20. ' Seriatim replies to the charges are given as desired in the following paras. Today on 7th May, 1978.
21. Thus, the reply is within time.
22. ' Rule 6 (b) of Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules. 1977 provide for reasonable opportunity of show-cause against any action. So far as the proceeding of this inquiry was concerned, it is the first time that I have been asked to clarify my position, whereas the initial so-called inquiry conducted by the commission has been ex parte and without my knowledge. Thus, it is evident that the undersigned is totally ignorant of the facts and figures basing the charge-sheet and the conclusion arrived at by the Commission.
(1) Maintenance of Record is the official function of the concerned Deputy Director/Storage Officer.
23. With regard to procurement and distribution. The Director as a Head of Department is informed about the functions of the Department through daily balance statements. During the period, 10th November, 1976 to 21st February, 1977 i. e. 3 months and 11 days only, when I was incharge of the Department the statements received were duly intimated to the concerned quarters i. e. The President, the Prime Minister, the Chief Secretary, the Secretary Food. The Commissioner, all Deputy Commissioners and concerned quarters in Kashmir Affairs Division. No statement of the daily return was due as unintimated during this short period of the undersigned. The initial record if at all, not maintained as pointed out now, can be clarified by the concerned hands. The undersigned has however nothing to do with it and is not to account for this deficiency.
(2) The undersigned remained as Director Food during 10th November, 1976 to 21st February, 1977.
24. Whereas, the deficiencies as compared with the actual receipt at ' Rawalpindi given in the charge- sheet pertains to 1st July, 1976 to 31st December, 1977. This is against item I above and does not pertain to my short tenure of 3 months and 11 days. In this report attention is drawn to the present Director Food's letter No, F-1 (8)/DF/77, dated 4th May, 1978 in which the up-to-date position of the balance/shortage has been arrived at, showing thereby let-know such efficiency as pointed out in the charge as existed. The basis of the charge is. Therefore, against the facts. In this connection my letter No, ADM/ DF/(3)/76, dated 19th December, 1976 is worth consideration.
25. (3)My tenure as Director Food ended on 21st February, 1977, The audit party is said to have visited the Directorate or Storage Office during November, 1977, result of the Audit pertains to my successor, if at all the same are admitted as final without getting the required clarification under rules. The charge culminates with the result that so-called record of storage office was not complete. Neither the period for the established facts were made known to me. This however can be clarified by the Storage Officer. The undersigned does not come in.
(4) One to general inflation and the rise of the prices in respect of P.
0. L. As announced by the. Government of the Pakistan, acclerated rates were allowed to the Government Contractors by all the departments. Due to rise in prices, the transportation of food commodities by the approved contractors, were not functioning properly, with the result that the situation of distribution and shortage of wheat and sugar were stopped. A panic situation was created by the Contractor in spite of the best efforts of the Department no solution was achieved and the public was being starved. Secretary Food's letter No, SF/(4)76, dated 30th December, 1976 and SF(4)/232/77, dated 22nd January, 1977 in this respect may please be referred to, whereunder, retendering of the transportation work for food grain was directed by the Government after a decision in a meeting held under the Chairmanship of the then Chief Secretary on 17th November, 1976 and conveyed by the Secretary Food vide his letter No, SF/(4)/1676/76, dated 30th November, 1976 (copy enclosed).
26. ' The contracts were, therefore, cancelled in the interest of Government orders the contractors were black-listed and other pecuniary steps were taken against them as provided in the agreement (Annexure `A'). Their securities were partly confiscated and new contracts were launched at their risk. As far as contracts for Nakyal, Kotli, Khuirata, Khuta are concerned. The position in brief is as under :- ' Nakyal does not relate to my period.
27. ' Kotli and Khuirata.-Contracts were given to one Messrs Malik Brothers but they failed to lift allocated quantity of wheat and thus food shortage occurred in Kotli, Deputy Commissioner and the Public demanded for immediate remedial steps. The contractor was given notices to fulfil his obligations and also he was given a grace period of 15 days by the Secretary Food vide his letter No, SF/(4)/1743/76, dated 9th December, 1976. But the contractor failed, and I was forced to cancel his contract by declaring him black-list for future contracts. To ease the food situation, the tenders were called again according to rules and lowest bidder was given the contract by Secretary Food vide Government sanction No, SF(4)/987-99/77, dated 16th April, 1977 and SF(4)/Part-II/77, dated 2nd March, 1977.
28. Kahuta.-First contractor failed to carry the allocated quantity of the wheat/sugar and he even did not pay heed to our reelected notices. Kahuta is a very sensitive place and food deficit area. So according to the directions of the Chief Secretary and the Secretary Food, contract was cancelled and new tenders invited under rules for limited quantity to ease the situation and to build the winter reserves before the start of snowy season and closure of roads. I cancelled the contract according to the Government policy/instructions by the Chief Secretary vide his letter No, SF(4)/1672/76, dated 30th December, 1976 (copy enclosed). Sanction of the contract was granted by the Secretary Food vide his letter No, SF(4)/1742/76, dated 9th December, 1976. No illegal or so- called detrimental action to the disadvantage of exchequer was involved in these cases as referred in the allegations. It is denied in the light of the above clarification given by undersigned the short period of 3 months and 11 days for which I remained as Director Food the undersigned has not acted in any shape against interest of the Government. Therefore, the conclusion arrived at under rules 3(4)(b)AJK, Civil Servants (Efficiency and Discipline) Rules, 1977 are not based on facts.
29. Thus, the assumption that the undersigned to be awarded the penalty of dismissal from service premature and unfounded.
30. ' In case the authorities still require any clarification in respect of the charges which although do not pertain to my period the undersigned be allowed to appear in person for further clarifications.
31. Yours obediently, (Sd.)
32. ' Dated 7-5-1978. Appellant (under suspension)
33. ' The appellant's above explanation was not accepted by the respondent though he was granted an interview by Chief Executive. Respondent issued order No, S&GAD/409-15/78, dated 9th November, 1978, thereby demotion in next lower grade was awarded to the appellant.
34. ' The appellant challenged the impugned order and prays for setting aside the same on the following grounds. Before we refer his grounds of appeal the impugned order reads as under :- Services and General Administration Department Azad Government of the State of Jammu and Kashmir. `Muzaffarabad'.
35. ' The President Azad Government of the State of J & K, considering the report of Enquiry Commission No, I, show-cause notice given to and reply to the show-cause notice submitted by Syed Iftikhar Hussain ex-Director Food Department Azad Government of the State of Jammu and Kashmir, now Deputy Registrar, Co-operative (under suspension), and finding him guilty of inefficiency under rule 3(a) of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, is pleased to award the punishment of demotion to him (Syed Iftikhar Hussain) in the next lower Grade under rule 4(1) b(i) of the Azad Jammu and Kashmir Efficiency and Discipline Rules, 1977.
2. The President has also been pleased to order his reinstatement with immediate effect.
36. (Sd.)
37. (S. D. Katal), Section Officer S&GAD ' No, S&GAD/4009-15/78, dated 9-11-1978.
38. Copy to :- ' The appellant submitted a review petition to respondent and the same was rejected vide order No, S&GAD/367-74/79, dated 25th January, 1979.
39. ' The grounds for his appeal are as under :- ' The Commission of Enquiry No, 1, had no authority to deal with a civil servant in respect of his terms and conditions of service particularly disciplinary matters and the order under appeal could not be based on the report of the Commission. The proceedings of the Commission of Enquiry No, 1 were ex pane, secret and whimsical. The appellant was not afforded opportunity to hear and cross-examine witnesses who might have deposed against him. He was not even shown the adverse material if any, which came to its notice. The report being in violation of natural justice has, in any case, no legal value while passing order under appeal Government was mostly influenced by this report and the order under appeal is not result of independent application of mind by Chief Executive. 'The order under appeal is vitiated.
(ii) Under the A J K Civil Servants (Efficiency and Discipline) Rules, 1977 a Commission of enquiry cannot be set up by the Government and action against the Civil Servant can only be taken by following the procedure laid down in rules. This violation of procedure has vitiated order under appeal.
(iii) The order under appeal shows that action against the appellant has been taken on the basis of the following :
(a) report of Commission of Enquiry No, 1.
(b) Show-cause notice served on the appellant ; and
(c) Reply submitted by the appellant.
40. ' This clearly established fact that the Government itself did not peruse the original record relating to the charges in question. Thus, the penalty imposed on the appellant is without any legal basis.
(iv) The appellant was charged misconduct in the show-cause notice but has been punished for inefficiency.
(v) The expression inefficiency does not appear in clause (a) of rule 3 of AJK Civil Servants Efficiency and Discipline (Rules) 1977, which has been applied to the appellant. Thus, the ground of the penalty was not available to Government, as it is quite distinct from the grounds of penalty mentioned in clause (a) above.
(vi) The charge was worded in the show-cause notice were vague and lacking in essential particulars. Even the material evidence on which these were based was kept secret from the appellant. In the circumstances it was not possible for the appellant to meet the charges. Thus, the appellant was not afforded a reasonable opportunity of showing cause in violation of sub-rule (3) of rule 6 and the rules of natural justice. Under the rules the appellant was entitled to such opportunities which were not afforded to him. Thus, the proceedings were not only illegal but also mala fide.
(vii) Under the Efficiency and Discipline Rules, 1977, certain powers have to be exercised by the authorised officer and some others have been vested in the authority. Although in case of the appellant the Government was itself "the authorised officer" and "authority", it was legally necessary for the Government to act in each capacity distinctly and separately which has not been done.
(viii) Under the rules, normally a civil servant has to be proceeded against under rules 7 and 8, which provide for holding a proper inquiry through an enquiry committee or enquiry officer. During the enquiry the accused civil servant is afforded the opportunity of cross-examining the witnesses and the Government, has to prove the charges against him in the manner indicated therein. This right can however, be taken away if the "authorised officer" decides that in light of facts of the case or the interest of justice it is not necessary to have any enquiry conducted through an enquiry officer or enquiry committee. If he so decides, then the less beneficial and arbitrary procedure, laid down in sub-rules (3) and (4) of rule 6 and rule 8 can be applied. No such decision was taken at any stage of the proceedings, in view of principles of natural justice, this decision could not be taken without hearing the appellant. In fact, facts of the case and interest of the justice demanded that procedure laid down in rules 7 and 8 should have been adopted.
(ix) The A J & K Civil Servants (Efficiency and Discipline) Rules, 1977 provided for two procedures, out of which one can be chosen to proceed against the civil servants. The procedure laid down in rules 7 and 8 is just and fair while the procedure laid down in rule 6 is arbitrary, capricious, whimsical, unjust and capable of misuse according to the powers to pick and chose vested in the "authorised officer", is similarly arbitrary and is not controlled by any guidelines on the basis of reasonable classification. This rule is against fundamental rights No, 15 as provided in the Interim Constitution of 1974. This position has been upheld by the A J & K High Court.
(x) The report of Commission of enquiry was withheld from the appellant and he never came to know of the contents of the report. The appellant was required to show cause against the proposed action without disclosing to him the material and evidence on which the Commission based its reports. In fact the appellant was not made aware of the items about which the Commission has reported against him. A written request was made on 27th April, 1978 to the Secretary, S & GAD for sur plying a copy of the report of the Commission, but the request was turned down verbally.
(xi) The order under appeal does not even indicate the charges which in the opinion of the Government stand proved.
(xii) All the four charges against the appellant were untrue and devoid of any substance (Annexure 'D') is in the file.
(xiii) The appellant was examined in the S & GAD by S. Muhammad Ibrahim Khan, Deputy Secretary because the Secretary (Mr. Khalil Ahmed Qureshi) was member of Commission of Enquiry No,
1. The aforesaid Deputy Secretary was hostile to the appellant as he had fears that if the appellant were to be exonerated of the charges, the said Deputy Secretary's brother Sardar Abdul Hamid, Assistant Registrar Co-operative Societies, would be reverted as Inspector. He, therefore, gave biased opinion against the appellant he even got a letter issued from Section Officer S & GAD to the Telephone Department and 23rd September, 1978 to the effect that appellant was no longer in service.
(xiv) The penalty of demotion is in any case too excessive, and while awarding this penalty the spotless service carrier of the appellant has been ignored. In a connected case Syed Aulad Ali Shah Gilani, Deputy Director Food has been awarded the same penalty of demotion in grade, although he was in the opinion of the Government found guilty of inefficiency and misconduct, while the appellant has been punished for inefficiency only.
41. ' On the basis of the above grounds of appeal, the appellant prays setting aside the impugned order and his adjustment to the post and grade to which he is entitled.
42. ' On 15th November, 1980 Advocate-General, counsel for the respondent presented written statement. In this statement he has denied all the grounds of appeal and prays for the dismissal of the appellant's appeal.
43. ' In support of his appeal the appellant got his statement recorded on 26th April, 1983. The learned Advocate-General did not produce any evidence. To ascertain the contention of the appellant's statement that he was Director Food in 1976 and he worked as such till February, 1977, when he was transferred as 0. S. D. And he proceeded on leave. In April, 1978 he read in the newspaper of news of his suspension, he asked the Government to inform him about the cause of suspension. He received the order of suspension and show-cause notice. He applied for inspection of the record and the same request was turned down. His suspension was the result of some enquiry conducted by Enquiry Commission, he was not told about the contents and proceedings of this enquiry, and he was never summoned or associated with the Commission. Mr. Khalil Ahmed Qureshi, Secretary, Services was working as member of this Commission and the show-cause notice was issued under his signatures. Against this he submitted application on 6th July, 1978 under rule 2(3) (i) of Efficiency and Discipline Rules, thereby, he challenged the appointment of Mr. Khalil Ahmed Qureshi as 'Authorised Officer' against him. There was no response. He replied to the show-cause notice without inspecting the record. The same was submitted to the Chief Executive through Secretary, Services and he was awarded the major penalty. He availed of the review petition on 7th December, 1978. The review petition was rejected on 25th January, 1979. In this order he was shown as Deputy Director Food, whereas he never performed the duties of this post. On 23rd September, 1978 the Services Department got the telephone of his residence disconnected by showing him as dismissed Government servant and in fact when he was placed under suspension. He remained under suspension from April to November, 1978 and he was denied the Allowance admissible to such Government servants. This was done with ulterior motive by the respondent. He was posted as Deputy Registrar, Co-operative Societies, but was not allowed to joint on this post. Actually his posting as Deputy Registrar was made on 17th February, 1977. Appellant's posting and joining this post could affect the brother of Sardar Muhammad Ibrahim Khan, Deputy Secretary, who managed this action against him. He worked as Deputy Registrar for some days and in January, 1977 he got his salary against the said post. Again Sardar Muhammad Ibrahim Khan, Deputy Secretary managed the transfer of appellant as O.S.D. In S&GAD. The same order has not been approved by the Chief Executive as necessary under rules. This is an example of personal enmity of the Deputy Secretary and speaks for mala fide against the appellant. The same Deputy Secretary has been watching the welfare and interest of his brother Abdul Hamid, a junior most Assistant Registrar.
44. ' The appointment of authorised officer and authority was to be Made strictly according to the E & D rules. This notification in the case of appellant was issued after he was reinstated. Under the above rules, enquiry officer should be same Secretary but in the matter of appellant Sardar Muhammad Ibrahim Khan, Deputy Secretary gave his opinion against the appellant. Discriminatory treatment has been shown to the appellant. Some other Government servants have been dealt with leniently, whereas major penalty has been awarded to him. There was no justification and reason for taking such drastic action against him. Great injustice has been done to him and prays for redress of his grievances. The appellant has relied on Annexures from Exh. PB/1 to Exh. PB/41. The appellant was cross-examined by the learned Advocate-General counsel for the respondent. He has admitted that he did not oppose the appointment of authorised officer in writing. He submitted his joining report in the Co-operative Department. Sardar Muhammad Ibrahim Khan was Section Officer Cooperative Department and is senior to the appellant. He also heard the appellant during investigation. It is wrong to suggest that on his objection Sardar Muhammad Ibrahim Khan was appointed as authorised officer instead of Mr. Khalil Ahmed Qureshi. This statement of the appellant deals with the conduct and functioning of S. Muhammad Ibrahim Khan who happened to be Deputy Secretary under the respondent. Finally the appellant prays for setting aside of the impugned order, and restoration to a suitable post in Grade-18, N. P. S. ' The learned counsel for the parties have argued this appeal. The learned counsel for the appellant has first of all referred to grounds of appeal, reply to show-cause notice Annexure 'D', grounds of his review. Petition Annexure 'F' and challenged the impugned order. He has argued that the appellant performed the duties of Director Food for 3 months and 11 days i. e. From 10th November, 1976 to 21st February, 1977. On the basis of the report of the Commission of Enquiry No, 1, the respondent served the appellant with show-cause notice on 29th April, 1978. The procedure prescribed for such enquiry by rule 6(b) of E & D Rules, 1977 was not followed. The show-cause notice issued on the basis of the report of Commission of Enquiry No, 1 is defective and void' ab initio. He has dealt with all the charges levelled against the appellant. In this behalf he has contended that charges Nos, 1, 2 and 3 are fantastic and baseless. Similarly charge No,.4 has been replied and explained by the appellant. The same charge is not proved and the impugned order cannot be sustained.
45. ' In support of his contention has relied on the Annexure Exh. P. B./I which deals with the distribution of work in the Directorate of Civil Supplies. This office order was issued by the appellant as Director Food on 3rd January, 1977. This order shows that the appellant was incharge of overall supervision of the entire department administration and procurement branches of Headquarter. Syed Aulad Ali Shah, Sardar Muhammad Arif Abbasi, Kh. Ghulam Nabi Baziz were incharge of Distribution, Movement and Accounts Branches, respectively. It is on record that action has already been taken against Syed Aulad Ali Shah. Gilani, Sardar Arif Abbasi, Deputy Directors of the same department.
46. Charges against them per Exh. P. B/4, Exh. P. B./5 and Exh. P. B../6 are identical.
47. ' This assertion of the appellant counsel is important and deserves our consideration on the ground that the above three charges are not proved and established. The Commission of enquiry has already blamed Syed Aulad Ali Shah Gilani and Sardar Arif Abbasi Deputy Directors who have failed to maintain the record of wheat and sugar. In light of the above facts the appellant cannot be blamed for the fault of his subordinates.
48. ' Charge No, 2 is also vague and quite contrary to charge No, 1 above. The period of appellants stay in the department is from 10th November, 1976 to 21st February, 1977 whereas the appellant has been made responsible for the shortage as occurred during the fiscal years 1976-77 and 1977-78 uptil December, 1977, i. e., when he was not Director Food Department. Appellant counsel has relied on the letter of Secretary Food addressed to Chief Secretary vide No, S. F./133/225/83, dated 11th January, 1983, placed on the file. In this letter the. Secretary Food, after thorough Audit of the Storage offices has concluded that Custodian of Stocks i. e. Mr. Hashmet Ali was responsible for the shortage of stocks which has been deducted from his pension bills, and that the appellant was not responsible for the above shortage. This letter contradicts the charge No, 2 as levelled against the appellant.
49. ' Charge No, 3.-With regard to this charge appellant counsel contends that this charge is also vague and lacks its material particulars. He has again referred in Annexure Exh. P. 8, Exh. P. B./3, 4, 5 and 6 therein showing that findings of the Commission of Enquiry No, 1 was clear that Mr. Arif Abbasi and Mr- Hashmet Ali was properly punished for not maintaining proper record. Findings of Commission of enquiry No, 1 was ex parte and conducted in his absence at a time when he was already transferred from the department. It is on record that the appellant was on leave when the Commission of enquiry proceed into the affairs of Food Department.
50. ' Charge No, 4.-As regard Charge No, 4, the appellant" counsel has referred to the record and drawn our attention to different orders issued by the Secretary Food and Chief Secretary from time to time. The tenders were invited in the year 1976-77 by Food Department, and sanction was accorded by the respondent Government. In 1976 Government announced 6% rise in the prices of petrol and diesel as such transporters were also affected by this rise vide Annexure 'D' it is amply clear that the Government of Pakistan and Azad Kashmir granted escalation to the contractors working on Government projects. The contractors of Food Department also demanded the escalation rates. The appellant informed the Government and told the higher authorities about the rise in rates and the attitudes of the contractors. The Food scarcity areas were pointed out to the Government by the appellant vide Exh. P. B./33,
34. The alarming food situation was brought to the notice of Government. To resolve this problem a high level meeting was held and was presided over by the then Chief Secretary on 17th November, 1976, Important decision was taken and conveyed to the appellant vide Exh. P. B./29 and later on the Secretary, Food conveyed to the appellant officially vide Exh. P. B./30. Another high level meeting was held on 20th November, 1976 therein the food situation was discussed and necessary instructions were issued to the appellant.
51. These contractors were to relieve these who were not willing to lift the foodgrains vide Annex. Exh. P.
52. B./32. The decision conveyed to the appellant shows that the appellant was in no way guilty of misconduct or inefficiency. He was not empowered to cancel or retain any contract of his own liking. Thus, business was regulated by the Government itself vide Exhs. P.B./29, 30, 31, 32 and 33.
53. These documents explain the overall situtation of the contractors and the food situation during those days in A. K. Concerned D. Cs. Were made responsible vide Exh. P. B./31. The appellant cancelled the contracts vide P. X./27 in and some other action was taken by the Secretary Food.
54. The appellant exerted and performed his duties as directed by the Government. In the meanwhile transferred and his responsibility with regard to the contractors is clear. His action was confirmed by Government and there is no proof of ulterior motives against the appellant.
55. ' In support of his contentions the appellant's counsel has relied on AIR 1956 (?) 57, PLD 1964 SC 68, AIR 1961 Cal. 40, AIR 1958 A P 240, AIR 1959 All 47, PLD 1963 Lah. 295, PLD 1964 SC 64. Finally he prays setting aside the impugned order and restoration of appellant in Grade-18 N. P. S. And posting. Accordingly.
56. ' The respondents counsel Raja Muhammad Akram Khan, Advocate-General has very frankly conceded that the charge of misconduct is not proved against the appellant. According to him the appellant has been properly punished for inefficiency. The same inefficiency is to be judged from the facts and circumstances of the case. The appellant failed to exert and lacked initiative. Due to his inefficiency the respondent-Government had to arrange and convene many high level meetings. The facts and circumstances of the case supported the action of the respondent against the appellant. He prays for the dismissal of the appeal.
57. ' In view of the arguments of the parties learned counsel, facts and circumstances of the case, we have made a thorough scrutiny of the record.
58. ' Considering this appeal as a whole, we are of the opinion that impugned order is liable to be vacated on the legal ground regarding proof of allegations as levelled against the appellant.
59. The probe conducted against the appellant by the inquiry Commission cannot be treated as evidence or proof and so cannot be read against the appellant on the ground of being ex parte void ab initio and without legal effect. These proceedings conducted in the absence of the appellant are, liable to be vacated as being without any justification. The nature of the allegations demands a thorough enquiry stands according to the provisions of the Efficiency and Discipline Rules, 1977. Since the same has not been followed by the respondent. We order fresh inquiry against the appellant according to law and law only.. The result is that we accept the appeal, set aside .The impugned order and direct that the appellant be adjusted as deemed proper by the respondent in Grade-18 N. P. S. ' SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN). - I am in agreement with the final conclusion drawn by my learned brother in the judgment in this appeal that impugned orders being not sustainable in law are required to be set aside. My reason, for the above conclusion are that the nature of the charges levelled against the appellant in the show-cause notice served upon him and reproduced in the judgment of the learned Member are such which required thorough enquiry as it was not possible to arrive at correct findings on them on the basis of proceedings based on the summary and short procedure envisaged by rule 6 of Efficiency and Discipline Rules. It has been made incumbent upon the Authorised. Officer, under rule 6 (2) of the Efficiency and Discipline Rules to appoint an Enquiry Officer or Enquiry Committee to enquire into the charges against accused civil servant if either the facts of the case or the interests of justice so demand and it is only when both in the light of the facts of the case' and the interests of justice it is not necessary to have the Enquiry conducted through an Enquiry Officer or Enquiry Committee that he is authorised to inform the accused civil servant in writing of the action proposed to be taken in regard to him and the grounds of action and give him an opportunity of showing cause against it. In this case in my view, it was absolutely necessary that enquiry into the charges against the appellant should have been got conducted either by Enquiry Officer or Enquiry Committee to come to some definite findings in respect thereof as in absence of such an enquiry it was impossible to form an definite opinion about the truthfulness or otherwise of the allegation against him merely on the basis of record on which the Government respondent have passed the impugned order of his reversion.
60. The appellant has been found guilty of the charges on the basis of report of the Commission of Enquiry No, 1, show-cause notice and the reply of the appellant thereto. So far the report of the Commission is concerned, it could not be legally used against the appellant for the purpose of finding him being guilty of the charges made against him in a disciplinary proceedings initiated under Efficiency and Discipline Rules. The said report c at the most could form the basis for commencing disciplinary action against the appellant under Efficiency and Discipline Rules but could not be made use of against him for the purpose of arriving at any conclusion on the charges levelled against him.
61. ' Therefore, impugned orders are set aside and the appellant is restored to his position with all back benefits. The competent authority shall take fresh proceedings against him in the light of the above orders in terms of rule 6 (2) of the Efficiency and Discipline Rules.