' ABDUL HAMID CHAUDHRY (MEMBER).--Muhammad Ayyaz Khan, Ex-Assistant Warden Fisheries, has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein he has impleaded the Director, Fisheries, Punjab, Lahore and the Secretary to Government of the Punjab, Forestry, Wildlife and Fisheries Department, Civil Secretariat, Lahore.
2. By virtue of this appeal the appellant has prayed that the impugned orders, dated 24-7-1983 arid 15-2-1984 be set aside and he be re-instated in service w,e,f, 21-7-1983 with full back benefits.
3. Brief facts of the case are that the appellant while working as Assistant Warden Fisheries/Fisheries Development Assistant, Jhelum and Sohawa was charge-sheeted on 29-3-1983 which was accompanied by statement of allegations by the Deputy Director, Fisheries Research Institute, Lahore vide his order, dated 29-3-1983. The appellant submitted his reply to the above charge-sheet. Mr. Khalid Mahmood, Assistant Director, Fisheries, Sialkot was appointed an Enquiry Officer to probe into the allegations. The Enquiry Officer submitted his enquiry report to the 'Authority' who served a notice for personal hearing under rule 8 of the Punjab Civil Servants (E&D)
Rules, 1975 vide order, dated 11-7-1983. The appellant was heard in person on 19-7-1983, after consideration of the case of the appellant and the penalty of removal from service w,e,f, 21-7-1983 was imposed upon the appellant by respondent No,1, vide his order, dated 24-7-1983. The appellant made an appeal to the Secretary to Government of the Punjab, Forestry, Wildlife and Fisheries Department which was rejected vide order, dated 15-2-1984. Hence this appeal.
4. We have heard Mr. M.A. Riaz, Advocate for the appellant and Mr. Muhammad Ibrahim, Deputy District Attorney on behalf of the respondents assisted by departmental representatives.
5. It has been submitted by the learned counsel for the appellant that the enquiry proceedings against the appellant were not held in accordance with the rules as he has been denied the opportunity to cross-examine the prosecution witnesses and also to produce his defence witnesses. He has made a grievance that the Enquiry Officer directed him that enquiry would be held in the office of the Union Council, Pind Dadan Khan at 8-00 a.m. On 4-6-1983. Accordingly the appellant alongwith the witnesses/labourers waited for the Enquiry Officer but the Enquiry Officer did not reach there in time with the result that the labourers dispersed. Subsequent the Enquiry Officer arrived at the place of the enquiry and the appellant explained the position and asked for more time because it was not due to his fault that his witnesses left after awaiting the Enquiry Officer for a sufficient time. However, he was not given any further opportunity whatsoever to produce his witnesses before the Enquiry Officer. It has been submitted that while recording the statement of Mr. Abdul Rehman, Fisheries Watcher, the appellant was asked to wait outside and he was not associated while the said witness was examined. It is further submitted that the most important witness in this case was Muhammad Sharif, Senior Clerk who produced the entire record of this case and also acted as the departmental representative before the Enquiry Officer. The said witness represented the entire case at that time but the appellant was not associated and not allowed to cross-examine the said witness. It has been pointed out by the learned counsel for the appellant that Muhammad Sharif one of the two complainants against the appellant appeared at earlier stage when his statement was recorded in the presence of the appellant. He alongwith the other complainants Abdul Karim, Senior Clerk did not stick to the complaint. The appellant's counsel has submitted that some of the charges against the appellant were also levelled against Abdul Rehman, Fisheries Watcher but after another independent enquiry Abdul Rehman Fishery Watcher was given a lesser punishment. He has also stated that some of the witnesses namely Qamar-uz-Zaman Khan, Tubewell Mechanic, Bashir Ahmad Supervisor, Abdul Shakoor, Labourer, Muhammad Farooq, Labourer and Subha Sadiq, Fishery Watcher who appeared before the Enquiry Officer as prosecution witnesses had supported the appellant's case but while giving his findings Enquiry Officer did not give due significance and importance to the statements of these prosecution witnesses which is quite unfair to the appellant. He has also invited our attention to the proceedings of enquiry and has pointed out that the Enquiry Officer did not allow the witnesses to give their statements of their own free will and choice but the Enquiry Officer adopted novel procedure of putting questions of his own choice and recording answers to such selected questions. The learned counsel for the appellant has submitted that this procedure has not been permitted in rules and caused serious prejudice to the appellant's case.
6. It was submitted by the learned counsel for the appellant that all these irregularities vitiated the proceedings as well as the impugned orders as the appellant was not given fair opportunity to offer his defence and to rebut the evidences produced by the other party. Thus, the appellant has been punished arbitrarily on the charges which were not proved against the appellant.
7. On the other hand the learned District Attorney has relied on the parawise comments submitted by the respondents and also has relied on the enquiry report of the Enquiry Officer. He has submitted that the Enquiry Officer has proved the charges against the appellant who has been found guilty of misconduct, the impugned orders are correct, lawful and no exception can be taken against the same.
8. We have given our anxious thought to the arguments of the parties and have also perused the record of this case, produced by the learned counsel for the appellant and have gone through the enquiry report and the enquiry proceedings. We are in agreement with the learned counsel for the appellant that the enquiry has not been held properly as the appellant was not associated with the enquiry throughout which is contrary to the law and rules. The appellant has not been afforded opportunities by the Enquiry Officer to defend himself by cross-examining the Senior Clerk Mr. Muhammad Sharif of the Department who produced the record and acted as Departmental representative before the Enquiry Officer. The record also shows that the appellant was not given the opportunities to produce the defence witnesses in his favour which were duly named by the other co-accused Bashir Ahmad in his case namely Labourers, Bostan, Sattar, Khurshid, Rashid and Latif which has caused material prejudice to the appellant's case as well. Moreover certain witnesses were produced namely Qamar-uz-Zaman, Abdul Shakoor, Muhammad Farooq and Subah Sadiq who gave statements which supported the appellant's case but no notice has been taken by the Enquiry Officer of the same while giving his findings. We have also noticed that the Enquiry Officer has not allowed the witnesses to give their statements freely and of their own accord but he adopted the procedure of putting question of his own choice and then recorded their answers to such selected questions. This procedure is abnormal, unjustified, is not fair, keeping in view the principles of natural justice. Keeping the above analysis of the case, we are of the considered opinion that the enquiry conducted by the Enquiry Officer is defective and has not been conducted strictly under the law and rules.
9. The result is that the impugned orders are set aside and the case is remanded to the "Authority"
Director Fisheries, Punjab, Lahore to proceed afresh by appointing another Enquiry Officer who be directed to conduct the enquiry in accordance with the rules. The appellant is directed to be re- instated in service to cloth him with the status of a civil servant so that the "Authority" can proceed against him. The fate of the period for which the appellant remained out of service will be decided by the 'Authority' after conducting the proceedings afresh as mentioned above.
' There is no orders as to costs.