' A.O. RAZIUR RAHMAN. (MEMBER).-- The appellant, who was a Technical Assistant in the Directorate of Federate Government Educational Institutions, since 4-7-1977, was removed from service, on account of misconduct, under the Government Servants (Efficiency and Discipline) Rules, 1973, by an order issued by Brig. Bashir Ahmad Malik, Director Public Instruction.
2. Prior to the issue of the dismissal order, a show-cause notice was served on the appellant, on 11- 10-1982, listing a number of charges against him, including those of misstatement, fraudulent drawal of money in excess of his entitlement, destruction of his Service Book, with ulterior motive of getting leave ex-Pakistan beyond his entitlement, and approaching the Education Secretary direct, without the permission of the Directorate. He was required to show cause within 15 days against dismissal from Government service and recovery of the. Overpayment made to him in lump.
3. In reply to the above notice, he wrote to the Director, on 19-10-1982, asking for copies of a number of documents and, with reference to fraudulent drawal of money, explaining that, on this count, he had already been served with a show-cause notice, as far back as 14-9-1977, to which he had replied on 18-9-1977, which reply had been forwarded by the Directorate to the G.H.Q where he was formerly employed during the period to which the overdrawal related. In connection with this item, he had asked for information as to the decision taken in the matter.
4. Documents and information asked for by the appellant were not furnished to him but the impugned order, as already Mentioned, was passed on 22-1-1983.
5. Between the issue of the show-cause notice on 11-10-1982 and the passing of the impugned order on 22-1-1983, besides the letter, dated 19-10-1982, written by the appellant asking for copies of documents and explaining the position regarding one of the charges, he addressed a letter, dated 19-10-1982, to the Secretary, Ministry of Education and Joint Educational Adviser (Institutions Wing), requesting for the setting up of an enquiry committee to go into the charges levelled against him, because, according to him, the Director was baised and his attitude towards the appellant was malicious. On the same date, the appellant wrote another letter to the Secretary, listing a number of allegations, against the Director, including those of indulgence in corrupt practice and higher- handedness towards the appellant. On the basis of these allegations, he demanded action against the Director.
6. It is not known what action was taken on the allegations levelled by the appellant against the Director of the Federal Government Educational Institutions. But, on 19-12-1982, the appellant was informed by the then Director, Col. (Retd.) Choudhry Muhammad Aslam Saleemi, with reference to his letter, dated 19-10-1982, addressed to the Joint Educational Adviser (Institution's Wing) that no enquiry committee could be constituted under the Government Servant (Efficiency and Discipline)
Rules, 1976 and that he should submit his reply to the show-cause notice by 26-12-1982. Since the appellant did not submit any further reply, the impugned order was passed on 22-1-1983.
7. The appellant preferred a departmental appeal to the Secretary, Education on 14-2-1983. In response to this appeal, the Secretary, Education set aside the order of removal from service and changed the penalty to reduction from the post of Technical Assistant (Grade-11) to U.D.C. (Grade- 7). This decision was conveyed through an office order by the Director (P&D), Col. (Retd.), Chaudhry Muhammad Aslam Saleemi, on 31-5-1983.
8. Aggrieved by the appellate order, the appellant came to the Tribunal, under section 4 of the Service Tribunals Act, 1973, on 29-6-1983. The appeal having been admitted on 10-7-1983, it came up for regular hearing on 19-3-1984 and is being disposed by this judgment.
9. The grounds on which the order in question has been impugned are, inter alia, that the facts and circumstances of the case were such as called for the institution of a formal oral inquiry, under rule 6 of the Efficiency and Discipline Rules; that in respect of one of the items of the allegations against him, the appellant had already furnished his explanation, as far back as 1976 and, since nothing had been heard in that behalf for over 5 years, it was only reasonable to presume that the explanation had been found to be satisfactory and the charge had been dropped. There could, therefore, be no justification for reviving the charge and taking action afresh against the appellant on that score. It has also been contended that there was no enquiry and no legal evidence before the respondents, on the basis of which they could pass the impugned order. Moreover, the appellant was not given a reasonable opportunity for defence, since no witnesses were examined in his presence, nor was he confronted with any documentary evidence in support of the so-called charges.
10. In their written objections, the respondents have taken the stand that as actions of fraud and forging of certificate by the appellant stood proved, no enquiry was required to be conducted in the case and a simple show-cause notice was sufficient. It has also been claimed that a reasonable opportunity was given to the appellant by the service of the show-cause notice, to which he did not respond in time. Besides, the grounds on which, according to the respondents, the charges levelled against the appellant were believed to have been proved, have also been briefly mentioned in the written objections.
11. After hearing the parties at length and perusing the relevant documents, we are satisfied that neither the original order of removal from service nor the milder order of reduction in rank passed at the appellate stage can be sustained.
12. The allegations against the appellant covered as many as 9 paragraphs spread over full two pages of foolscap paper and containing allegations of cheating, submission of bogus certificate, misstatement of facts, fraudulent drawal of money, destruction of Service Book and violation of official discipline. For any man within his senses to presume that charges of these kinds could be taken as established without any formal enquiry is not only preposterous but a deliberate and wilful insult to ordinary human intelligence and commonsense. Any person who takes a stand like this either deliberately wants to fool others or is himself deficient in logic and incapable of appreciating that an allegation does not stand proved merely because the concerned authority wants to believe it to be true. The very nature of the allegations against the appellant indicated a proper enquiry under .Rule 6 of the Government Servants (E&D) Rules, 1973 and not a summary disposal under rule 5 (iii) and one should have expected that such a course would have been adopted. But, not only did the authorities not do so and, to begin with, they even refused to change their decision in this behalf in spite of the persistent demand of the appellant, what is worse, they even took the plea that the Efficiency and Discipline Rules stood in the way of the constitution of an enquiry committee. In fact, the authorities appeared to be so determined to deny any quarter to the appellant that they even did not supply copies of the documents asked for by him. All this goes to show that the concerned authorities dealt with the appellant with a prejudiced and predetermined mind, which lends support to the allegations made by the appellant that he was victimised by the former Director of Education, Rao Muhammad Yasin Khan, who had a grouse against him for his interfering in the misuses of petrol for the benefit of the Director.
13. It appears that, subsequent to the action started against him, the appellant levelled a number of serious charges against the Director. Without going into the question whether there was any substance in these allegations, or these were cooked up by the appellant only to divert attention from the charges preferred against him, we would like to observe that, by the manner in which the Director short-circuited the proceedings against the appellant, he clearly laid himself upon to the charge that the action taken by him against the appellant was not completely bona fide and above-board.
14. In the light of the above discussions, we hold that the charges against the appellant were not proved and, therefore, the order of removal from service passed by the Director was not justified.
For the same reason, the reduced punishment of reduction in rank also cannot be defended.
15. In the result, the appeal is allowed, the impugned orders are set aside and it is ordered that the appellant be re-instated as Technical Assistant, with effect from 22nd January, 1983. It is further ordered that he shall be entitled to all the consequential benefits of the reinstatement. However, it is clarified that since the re-instatement is being ordered, not on the merits of the charges against the appellant but, on the ground of irregularity in the proceedings, the competent authority is not debarred from proceeding afresh against the appellant, if it so wishes.
16. Before closing, we would like to mention the plea made in the appeal for the refund of the money recovered from him on account of alleged overpayments. Since neither of the two impugned orders related to the said recovery, we do not want to go into the merits of the claim. If, for any reasons, the appellant feels that he has any claims for refund, he should prefer it before the concerned authority and come up before us only if he fails to get redress, after exhausting the departmental remedy.
17. With the above orders and observations the appeal is disposed of.
18. No orders as to costs.