' Muhammad Amin Riaz ex-Accountant, Municipal Committee, Chishtian has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein he has impleaded the Secretary to Government of the Punjab, Local Government and Rural Development Department, Lahore as respondent.
2. By virtue of this appeal, the appellant has prayed that the impugned order, dated 10th November, 1981 and the final order, dated 8 th January, 1984/10th January, 1984, be set aside and appellant be re-instated in service with full benefits.
3. Brief facts of the case are that a number of complaints were lodged by the public as well as the Contractors against the malpractices which were being committed by the then Administrator, Chief Officer and Overseer of Municipal Committee, Chishtian. The Commissioner directed the Assistant Commissioner, Chishtian to conduct an enquiry into these allegations against these officers, who deputed the Magistrate 1st Class and Tehsildar, Chishtian for the same. It is stated by the appellant in para. 2 of the appeal that during the course of inquity, an impression was gathered that the appellant was at the back of the complaints. Consequently the appellant was got shifted from Municipal Committee, Chishtian to Ahmad Pur East vide order, dated 12th April, 1978 (Annexure B'). However, the Commissioner intervened in the matter and held the appellant's transfer in abeyance. It is further stated that due to retaliation the Chief Officer unnecessarily involved the appellant in a case of theft of official files and lodged F.I.R. No, 6, dated 18th May, 1978 (Annexure 'C'). However, the appellant has explained in para. 4 of his appeal that he moved an application, dated 10th April, 1979 (Annexure `D') under section 561-A, Cr. P.C., in Lahore High Court, for the quashment of the above-noted criminal proceedings. The appellant's petition succeeded and following orders were passed on 17th June, 1979 by Mr. Justice Saad Saood Jan :- "The explanation furnished by the petitioner has not been controverted by the learned counsel appearing for the State. This being so the prosecution of the petitioner is clearly an abuse of the process of the Court. Accordingly, L quash the proceedings pending against the petitioner."
' However, the above-noted enquiry was dropped and an Enquiry Committee consisting of a Major and M.I.C. Was formed to probe Into the matter. A copy of the enquiry report, dated 22nd June, 1978, conducted by Major Abid Hussain and Malik Munir Ahmad, M.I.C., is at Annexure `E'. There were large number of allegations of embezzlement, malpractices against the Administrator, Chief Officer and Sub-Engineer. Through this enquiry report the appellant was also held responsible for passing irregular bills and making payments of the Projects as the appellant did not see that all the Rules and Regulations had been complied with. Accordingly the Enquiry Committee recommended that Major penalty be awarded to all the four officials including appellant [refer above enquiry report Annexure 'E' page 5 of the enquiry report, : Recommendations (i)]. On the basis of above enquiry a charge-sheet was served upon the appellant and other co-accused. A departmental enquiry was got held into these allegations by Ch. Hassan Din, Project Manager, Rural Development, Chishtian against the appellant as well as the said three accused officers. The Enquiry Officer exonerated the aforesaid officers as well as the appellant for Charges Nos, 1 and 2. However, the Enquiry Officer held the appellant guilty of Charge No,
3. The Authority (respondent) considered the report of the Enquiry Officer/Authorised Officer and dismissed the appellant from service, with immediate effect vide his order, dated 10th November, 1981. The appellant filed an Appeal No, 311/1858 of 1982, before the Punjab Service Tribunal. This appeal was, however, disposed of as being premature and the appellant was directed to exhaust the remedy of review petition before the Government, vide judgment/order, dated 29th June, 1983. The appellant filed a review petition, dated 27th July, 1983 and the penalty of dismissal was converted to compulsory retirement vide order, dated 10th January, 1984, of the respondent. Hence this appeal.
4. I have heard the parties i,e,, Mr, Masud Ahmad Riaz, Advocate on behalf of the appellant and Mr. A.G. Humayun, District Attorney assisted with the representative of the respondent, on behalf of the respondent.
5. It has been submitted by the learned counsel for the appellant that the appellant had been exonerated by the Enquiry Officer from Charges Nos, 1 and 2. As far as Charge No, 3 is concerned the enquiry report for holding the appellant guilty of this charge is also vague, arbitrary and conclusion has been drawn on conjectures and surmises. The Enquiry Officer, for this charge, has not based his findings on any specific and concrete evidence/proof against the appellant. The appellant's counsel has also referred to the impugned order of the respondent, the Secretary, Government of the Punjab, Local Government and Rural Development Department (Authority), dated 10th November, 1981 and has submitted that the appellant was dismissed on the basis that the appellant had been held guilty of all the three charges by the Enquiry Officer and the Authorised Officer. Also the explanation regarding wilful absence for 1 years of the appellant was not found acceptable. It has been pointed out by the appellant's counsel that the above order of the authority is totally misconceived and not based on the facts on record. The Enquiry Officer did not hold the appellant guilty of Charges Nos, 1 and 2. Nowhere any Authorised Officer was appointed in this case and no recommendations were made by the Authorised Officer for holding appellant guilty of the charges as mentioned by the Authority. The appellant has also been punished for wilful absence for 11 years. This charge was not subject-matter of the charge-sheet and appellant was never charge-sheeted for the same and was also not given proper opportunities to defend himself for the alleged absence. The above order of the authority has been passed without applying proper mind, is vague and contradictory. The appellant's counsel has also referred to Annexure 'L' whereby decision dated 8th January, 1984, on his review petition has been given by the Secretary, Government of the Punjab, Local Government and Rural Development Department and has submitted that it is astonishing to note that the above Secretary, has finally held the appellant guilty on the basis of Charges Nos, 1 and 2 i,e,, failure to point out whether proper technical sanction and administrative approval in respect of works in question existed on record or not ? And another extraneous charge of absence from duty. He has pointed out that the 3rd charge i,e,, creating party factions, was dropped by him. The appellant had already y been exonerated from Charges Nos, 1 and 2 by the Enquiry Officer. Therefore, the Secretary did not apply his due mind while deciding the review petition of the appellant as he held him guilty of Charges Nos, 1 and 2, which were not proved by the Enquiry Officer. Thus, the only crucial point, under dispute has been, regarding the so-called absence of 11 years which was also an extraneous matter and the appellant was not charge-sheeted for the same ; no enquiry was held and this charge was not at all proved, keeping in view the documents submitted by the appellant and the correspondence on the record. To elucidate this point, it has been submitted by him that the appellant had been submitting applications for the grant of leave on medical ground which were duly received and recommended by the Authorities concerned. On the basis of these applications Deputy Commissioner, Bahawalpur, got verified the appellant's leave title from the Director, Local Fund Audit, Bahawalpur who verified vide his letter, dated 29th January. 1980 that 580 days leave was due on full pay to the appellant on 21st August, 1978 (all the necessary documents have been placed on record by the appellant' s counsel). However, the sanction of leave was deliberately withheld by the Authorities of the Municipal Committee so as to dub the appellant as absent from duty. He has also referred to the various postal receipts under which the appellant has been submitting his applications alongwith the medical certificates. He has also relied upon the Leave Rules, 1978, according to which leave on medical grounds cannot be refused by the competent authority. However, the competent authority had the discretion to refer the appellant's case to the Medical Authorities concerned ; but in this case no such course was adopted by the competent authority which implied that the competent authority accepted the leave applications and medical certificates submitted by the appellant. Thus, the leave applied on the medical grounds could not be refused by the competent authority. The charge of absence against the appellant, is thus arbitrary and without any substance.
6. The appellant's counsel has vehemently argued that this is a case of high handedness and maltreatment by the Departmental Authorities and it was the appellant who had suffered a lot of mental torture and in prestige due to such treatment of the Departmental Authorities. He has relied upon the fact and the grounds of enmity, which were urged by the appellant in the application for quashment of the proceedings which were initiated at the behest of the Chief Officer, Municipal Committee, Chishtian. He has shown that a specific ground of enmity of the said Chief Officer was taken in the said application which was accepted by Mr. Justice Saad Saood Jan, in his order, dated 17th June, 1979. Similarly the learned counsel for the appellant has drawn the attention to the photograph at Annexure 0/2 according to which the appellant after his arrest, was made to go through the Bazar of the Chishtian, in order to humiliate the appellant in the eyes of the public. He has, therefore, submitted that these two points refute the allegation that the appellant created party factions whereas the fact is that the appellant had suffered immensely at the hands of the Chief Officer. The learned counsel for the appellant has also referred to the enquiry report of the Enquiry Officer, Ch. Hassan Din, Project Manager, Rural Development, Chishtian regarding the allegations of party factions and it has been submitted that the Enquiry Officer did not prove this allegation independently but he relied upon the impression given to the first Enquiry Committee.
Adoption of this procedure by the Enquiry Officer is against the law, principles of fair-play, justice and equity. The learned counsel for the appellant has relied upon the decision of the Lahore High Court and the Honourable Supreme Court of Pakistan, reported as PLD 1970 Lah. 811 and PLD 1963 SC 460, respectively, wherein it has been held that the enquiry officer should hold independent enquiry and should not depend on the enquiry held by any other Officer. Therefore he has contended that the finding of the enquiry officer about party factions relying on the report of the earlier Enquiry Committee is no finding at all and this is also malicious. This all has been done to save the Chief Officer, who was equally held guilty of misconduct by the earlier Enquiry Committee.
7. Concluding his arguments the learned counsel for the appellant has submitted that the appellant has been victim of inimical and malicious treatment by the departmental authorities. He has also pointed out that the impugned orders have been passed without due application of the mind by the respondent, are against the facts of the case on record and are, thus, arbitrary and unlawful.
8. On the other hand the above arguments have been rebutted by the learned District Attorney, relying on the parawise comments submitted by the respondent. He has submitted that the appellant has been held guilty of the charges by the Enquiry Officer and Authorised Officer, hence, the appellant has been punished by the Authority correctly. He has further contended that the Authority had considered the appellant's point of view and all the facts of the case on record while rejecting his review petition. Therefore, no exception can be taken to any of the impugned orders.
9. I have given my anxious thought to the arguments of the parties and have also consulted the record of this case with the assistance of the representative of the respondents.
10. If a reference is made to the impugned order, dated 10th November, 1981, issued by the Government of the Punjab, Local Government and Rural Development Department, the appellant has been held guilty of three charges mentioned in first para. Of the order and also the appellant has been held guilty of wilful absence for 11 years. Thus, the appellant has been punished for four charges. It is interesting to note that the enquiry officer did not hold the appellant guilty of Charges Nos, 1 and 2 and exonerated the appellant from the same. He held the appellant responsible for the Charge No, 3 that the appellant created party factions in the Municipal Committee, Chishtian. As far as the charge of absence from duty is concerned, it was not a subject-matter of charge-sheet.
No enquiry was held on this account and the appellant was not given any opportunity to defend himself by producing the required documents/witnesses. Thus, it is clear that this impugned order is defective, has not been passed by the authority on facts and after applying due mind. It is also worth mentioning that the Commissioner, Bahawalpur Division, Bahawalpur while referring the case of the appellant to the Secretary, Government of the Punjab, Local Government and Rural Development Department, Lahore, vide his memo. No, LBA/PF-80/11017, dated 12th September, 1981, did not apply his mind as well as he did not elaborate the enquiry report or findings of the Enquiry Officer and only recommended that the appellant should be removed from service on account of misconduct, He had also made the recommendation that the official was absent from duty for the last 11 years. The Commissioner did not visualize that this allegation was not a subject-matter of the charge-sheet and it had not been enquired into by the Enquiry Officer and as such the Commissioner was not competent to include this allegation at this stage. The Enquiry Officer had categorically exonerated the appellant from the Charges Nos, 1 and 2 and the Commissioner had not recorded any difference of opinion with the Enquiry Officer on his findings with regard to Charges Nos, 1 and 2, but had generally stated that the appellant was recommended for major penalty on account of his misconduct. Similarly the authority had also treated this case very casually without applying full mind into the case without reading the enquiry report and other documents on record. Had he gone through the enquiry report, it would have been clear to him that the appellant was exonerated from the Charges Nos, 1 and 2 by the Enquiry Officer for which the Authority has held him guilty on the basis of the said enquiry report. Similarly he did not bother to see that the charge of wilful absence was not the subject-matter of the charge-sheet and also no enquiry was held to prove this charge. It will also be necessary to refer to the order of Secretary to Government of the Punjab, Local Government and Rural Development Department (Annexure 'L' passed on the review petition, of the appellant. It clearly shows that the appellant has been held guilty by him for the Charges Nos, 1 and 2 and for unauthorised absence from duty for 11 years.
Thus, the Charge No, 3 i. e. Creating the party factions by the appellant has been dropped by him.
As far the Charges Nos, 1 and 2 are concerned, it need not be emphasized again and again that the Enquiry Officer had, on the basis of the evidence before him, rightly too, had completely exonerated the appellant from the Charges Nos, 1 and 2. Thus, the above order of the Secretary for holding the appellant guilty for these two charges, is totally fallacious and misconceived. The only charge for which the appellant has finally been punished, is unauthorised absence from duty for 11 years. This charge was not a subject-matter of charge-sheet and was never enquired into at any stage and was not proved against the appellant. The appellant had been taking the stand at all the stages that he had been submitting applications for the grant of leave on medical ground which were recommended by the authorities concerned. The title for this leave was duly verified by the Director Local Fund Audit Department vide his letter, dated 29th January, 1980. Thus, it was unjustified on the part of the authority to punish the appellant for wilful absence from duty on an extraneous matter, without proving the same.
11. The upshot of the above analysis of the case is that the impugned orders have been passed mechanically and without due application of mind and without consulting the evidence on record as well as the enquiry officer's report. Thus, the appellant has been punished arbitrarily and without any factual basis. Hence, the impugned orders are unlawful and cannot be sustained. The result is that the appellant is re-instated in service from the date of his suspension. The impugned orders are set aside, being unlawful having no effect whatsoever. The appellant shall be entitled to all the back benefits.