M.S.H. QURAISHI, J.-- This appeal by leave of the Court is directed against the dismissal of the appellant's appeal by the Sind Service Tribunal against his removal from service.
2. The appellant, who had been appointed as a Civil Judge on 20-5-1971, while posted as Extra Joint Civil Judge and Rent Controller, Hyderabad, dealt with a contested rent application filed by Roshan Ali and others for ejectment from the University of Sind from a house which was being used by the latter as a hostel. After having determined the question of the existence of relationship of landlord and tenant in favour of the landlords, the appellant proceeded, on 22-12-1973, to make an order for deposit of tentative rent. The landlords had claimed rent at the rate of Rs.2,000 per month, for which they had furnished no proper basis. The University, on the other hand had produced an extract from P.T.I. Register for the year 1969 to show that the rent of the premises, was Rs.162 per month. The appellant rejected the University's case for the reason that the extract from the P.T.I.
Register could not be considered to be the latest assessment of the property and fixed the tentative rent at the rate of RS.1,000 per month and directed the University to deposit the arrears of rent from 21-3-1966 amounting to Rs.93,613, within a period of one month. The University filed an appeal on 19-1-1974 in which the appellate Court requisitioned the record of the case and a stay was also granted on 12-2-1974 against the withdrawal of the arrears deposited by the University.
However, it so happened that on 22-1-1974, that is, only a few days after the filing of the appeal the landlords moved an application for withdrawal of the arrears deposited by the University, on which the appellant recorded, the same day, first "Notice to other" but then substituted the same by an order permitting the withdrawal, in pursuance of which order an amount of Rs.94, 613 was withdrawn on 24-1-1974. The record when sent to the appellate Court did not contain the with-- drawal application or the order passed thereon. Moreover, despite the pendency of the appeal and the stay order, the rent application was dismissed on 15-3-1974 in default for non-appearance of the landlords. The conduct of the appellant drew adverse comments from the Appellate Authority as being without precedent.
3. When the matter came to the knowledge of the Sind High Court, the Chief Justice of that Court, as the "authorised Officer", decided not to adopt the course of a formal inquiry and issued notice under rule 5(3) of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973, furnishing details of the grounds of the action and calling upon the appellant to explain his lapses and abuses of official position, which according to notice, amounted to inefficiency, misconduct and corruption and to show cause why one of the major penalties should not be imposed upon him. The appellant showed cause and took the plea of judicial error. The Authorised Officer did not find the explanation to be satisfactory and accordingly recommended his removal from service, which was accepted by the authority and a notification in that regard issued on 20-6-1978. The appellant's departmental appeal having failed, he filed appeal before the Tribunal, which was dismissed, as aforesaid.
4. The Tribunal rejected the plea of judicial error and held that the remark of the Appellate Authority regarding the appellant's conduct and the adverse inference regarding motive appeared to be justified. The Tribunal, relying on the case of Syed Nasir Hussain Zaidi 1981 SCMR 402, also repelled the contention that the proceeding had suffered infirmity on account of non-mention of the specific penalty to be imposed or on account of not giving the appellant another personal hearing in respect of the actual punishment to be awarded.
5. Leave was granted to consider whether in view of Mir Muhammad v. N.-W.F.P. Government PLD 1981 SC 176 the correct procedure in a case where a formal inquiry had been dispensed with has been followed and whether a stray incident in a quasi-judicial proceeding should have been made the basis for the action taken against the appellant.
6. The appellant, who himself argued the case before us, urged that the order of his removal was liable to interference inasmuch as no reasons had been recorded for dispensing with a formal inquiry and, secondly, as no further opportunity had been given to him to show cause against the punishment actually proposed to be awarded to him. On the first point, we find that rule 5(2) of the Rules gives the authorised Officer the discretion to decide whether or not, in the light of the facts of the case or the interests of justice, an inquiry should be conducted through an Inquiry Officer. The rule does not require him to record his reasons also for so deciding. For the second point reliance has been placed on the afore cited case of Mir Muhammad but a careful reading of that case would show that the same does not support the appellant. That was a case upon charges of misconduct and reputation of being corrupt, in which an Inquiry Officer had been appointed who had made a detailed inquiry and upon whose report to the effect that the charges had been established, the Authorised Officer had recommended the dismissal of the accused and in the result the accused had been dismissed from service by the authority. In this context it had been held that-- " ---.. In a case where a formal inquiry is held, it seems to be animplicit requirement of the relevant rules that a copy of the inquiry report should be furnished to the accused-official so a: to enable him to offer his explanation with regard to the adverse findings, if any, recorded against him by the Inquiry Office or the Inquiry Committee, as the case may be. Such a requirement cannot be brushed aside by saying that it would amount to a second show-cause notice."
7. It is to be noted that in the earlier rules, that is, the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, there was an express provision under rule 9 thereof, requiring the authority, in case on consideration of the report of the Inquiry Officer it came to the opinion that major penalty was to be imposed, to so inform the accused and supply him with a copy of the Inquiry Officer's report calling upon the accused to show cause within a reasonable the against the imposition of the penalty proposed. There is no such express requirement in the present Rules of 1973 which also governed Mir Muhammad's case. The relevant rule, that is, rule 5(4) reads: ---5.
(4)On receipt of the report of the Inquiry Officer.... The authorised officer shall determine whether the charge has been proved and--- (a)
(b) if it proposed to impose a major penalty, he shall forward the case to the authority alongwith the charge and statement of allegations served, on the accused, the explanation of the accused, the findings of the Inquiry Officer or Inquiry Committee, if appointed, and his own recommendations regarding the penalty to be imposed, and the authority shall pass such orders as it may deem proper."
In interpreting the above, it was observed in Mir Muhammad's case that-- "That explanation of the accused referred to in sub-rule (4) of rule 5 cannot mean the preliminary denial or admission of the accused official in terms of clause (b) of sub-rule (1) of rule 6; as at that the all the circumstances and evidence to be marshalled against him during the course of the inquiry are not within his knowledge; and he would acquire knowledge thereof only when the evidence has been led and the Inquiry Officer or Committee has formulated its findings. A proper explanation of the accused Officer in such a case can only be furnished if he is supplied a copy of the inquiry report so as to offer his comments in regard to the findings record therein, and the action proposed to be taken against him on their basis."
A comparison had also been made, in this connection, with the shorter procedure of rule 5(3), where under a formal inquiry is dispensed with and it had been observed: "---.. In sub-rule (3), which embodies the shorter procedure for dealing with disciplinary matters it is clearly contemplated that the Authorised Officer shall inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and shall give him a reasonable opportunity of showing cause against that action. There seems to be no logical reason for denying the accused Officer a similar opportunity in a case where a formal inquiry is held in terms of rule 6 read with sub-rule (2) of rule 5. It appears to be the salutary requirement of rule 5 that the accused Officer must be given a reasonable opportunity of showing cause against the action proposed to be taken against him. If the shorter procedure is followed and inquiry is dispensed with, then this stage is reached when the grounds of the proposed action and the allegations are conveyed to him; but this stage is reached in the case of a formal inquiry only after the inquiry has been completed and the Authorised Officer has formulated his views in the light of the inquiry report. It seems to us, therefore, that on a proper construction of rules 5 and 6 read together, it is a statutory requirement that if a formal inquiry is held, then the Authorised Officer shall, after he has tentatively decided upon the action he proposes to recommend to the authority, give an opportunity to the accused Officer to offer his explanation against the proposed action in the light of the findings of the Inquiry Officer or Inquiry Committee, before sending his recommendations to the authority. This would, of course, necessitate that a copy of the inquiry report be furnished to the accused Officer at this stage, and he should be apprised of the action proposed against him."
The view taken thus was that in the case of a formal inquiry, the stage at which the report of the Inquiry Officer has been submitted to the authorised Officer is to be equated with the stage of sub- rule (3) The observations in Mir Muhammad's case are, therefore, not amenable to an inference that even under sub-rule (3) after the grounds of action had been communicated to the accused Officer and he had been given a reasonable opportunity of showing cause against the action a further opportunity to show cause against the penalty proposed is to be given to him. It is true that the notice under sub-rule (3) served on the appellant did not specifically mention as to which of the major penalties was to be given to him but such non-mention, in view of Syed Nasir Hussain Zaidi's case 1981 SCMR 402, relied upon by the Tribunal, cannot be said to have prejudiced the appellant in any manner inasmuch as in the notice under sub-rule (3) the attention of the appellant had been drawn to rule 4(b) prescribing the various penalties and the penalty imposed had been one of them.
8. As regards the quantum of punishment, the same is a matter within the discretion of the authority and its decision is hardly open to interference on the ground of the lapse being in the nature of a stray incident.
9. We, therefore, find no merit in this appeal which is hereby dismissed.