1. MUSHT AK ALI KAZI (CHAIRMAN). --This service appeal is directed against an order of Chief Engineer , Buildings Department, Government of Sind, Hyderabad, directing an amount of Rs,4,320 to be recovered from the appellant for loss of two Diesel Engines.
2. ' The appellant, a Sub-Engineer , was proceeded against under the Efficiency and Discipline Rules, 1973 for misconduct and misappropriation and was served with the Charge Sheet that during his tenure as Overseer Sanitary Sub-Division, Khairpur , in the year 1964-65, two Pump Sets of 7.5 Horse Power lying in custody of the contractor for the work of construction of the Pump House were not recovered from him and they were lost to the P.W.D. He was, therefore, liable for misconduct and issued show cause why a major penalty should not be imposed on him.
3. ' The appellant submitted his explanation. The Superintendent Engineer , Provincial Building, Circle I, Hyderabad was appointed Inquiry Officer. He sent his report to the Chief Engineer , dated 29-8-1979, stating that from the explanation of the Sub-Engineer and verification of the case it became apparent that nothing was established against Mr. Saifullah and he may be exonerated from the charges levelled against him. On this report the then Chief-Engineer Mr. H.E.A.G. Sani, passed order , dated 12-9-1979 acquitting the appellant of the charges. Mr. Sani was succeeded by another Chief Engineer Mr. K.R. Solangi who re-opened the case and passed following order on 22-3-1981.
"ORDER"
4. ' The orders acquitting Mr. Saifullah Khan Sub-Engineer , from the charges in connection with defective work of Rural Health Centre, Kandiaro, issued under this of fice order , dated 12-9-1979 are hereby cancelled.
5. ' As a result of the above order the appellant was served with the same charge-sheet for the second time, for loss of two Diesel Engines with pumps of the value of Rs,4,500 each. The appellant in reply to the charge-sheet stated that the charges levelled against him were the same as in the First Charge-Sheet, served on him in the year 1971 regarding which it had been stated that nothing could be established against him. He also pointed out that having once been exonerated, he could not be proceeded again on the same charges after three years.
6. ' The explanation of the appellant was not considered to be satisfactory and Mr. Aijaz Hussain Mughal, Executive Engineer , Provincial Buildings Division was appointed Inquiry Officer. In his report he recommended that loss of Rs,5,400 should be apportioned between Mr. Muhammad Hashim Shaikh, S.D.O. And the appellant Sub-Engineer in the ratio of 20% and 80% respectively . Mr. K.R. Solangi, Chief Engineer , accepted this recommendation and by order , dated 26-5-1983 called upon the two officers to make good the loss by payment of Rs,1,080 and 4,320, respectively .
7. ' Both the officers preferred departmental appeals to Secretary , Communication and Works Department which were rejected. They accordingly filed their appeals before this Tribunal separately .
8. ' The respondent Government in their written statement have admitted, that the Chief Engineer , Buildings Department, Hyderabad by order , dated 12-9-1979 had acquitted the appellant of the charges levelled against him.
9. But they have explained that, "the order was passed on erroneous findings and did not have the necessary lawful backing", that by order , dated 22-3-1981 the succeeding Chief Engineer cancelled the orders of his predecessor and ordered a fresh inquiry .
10. In the same written statement it has also been admitted that the copy of the inquiry Report was not supplied to the appellant before passing of the final order imposing the penalty , because "the appellant was imposed a minor penalty and it was not considered feasible to supply the copy of the enquiry report". Obviously no show-cause notice was served on the appellant after the second report of the Inquiry Of ficer and before imposing the penalty .
11. It is a principle of natural justice that nobody can be vexed twice for the same cause. Since the appellant was made to face an inquiry on the very same charges and was found not guilty and acquitted, B he could not be re- proceeded against in respect of these charges. Nor could the successor Chief Engineer cancel the order of acquittal, passed by his predecessor . He had no such powers of review or revision.
12. This is also known as principle of res judicata or Rule against double jeopardy . A 'res judicata' is a final judicial decision pronounced by a judicial tribunal which disposes once and for all of the matter , decided. Such matters cannot afterwards be re-litigated by the same parties. They are estopped 'per rem judicatam' from doing so. Or to put it another way; where a decision is binding it may operate as a res judicata to prevent further litigation of the issues. A justification for this rule is, that there is a public interest in calling a halt to litigation.
13. ' The same principle applies to order passed by Administrative Authority .
14. ' The question is whether an administrative authority has the power to revoke, modify or change a decision it itself has made. Section 21 of the General Clauses Act gives the executive authority power to cancel or rescind orders.
15. But this power could be exercised only if the order which is cancelled had not been carried into effect. Since the order became operative after it was communicated to the appellant and the case was closed, it could not be withdrawn or cancelled subsequently after 3 years. As soon as the order becomes effective, it becomes irrevocable. Thus, where a body has been conferred the duty of determining a question, the determining of which affects the rights of subject, such determination made and communicated in term which are not expressly preliminary or provisional, is final and conclusive, and cannot in the absence of express statutory power or the consent of the person affected be altered or withdrawn by that body . The order acquitting the appellant passed by the Chief Engineer . Mr. Sani was, therefore, binding on Mr. Solangi who could not cancel it, once the decision had been taken. It is rather unfortunate that an officer of the position of Chief Engin eer either showed ignorance of elementary principles of Administrative law, or knowingly tried to act in hi ghanded manner , by disregarding the principle, resulting in untold hardship to a subordinate of ficer.
16. ' The error remained undetected even during the course of departmental appeal to Secretary , Communication and Works, and the appeal was disposed of without proper adjudication of this question.
17. The administrative departments generally decide departmental appeals or representations by simply saying, "the petition has been considered and rejected", without giving any reasons. Mentioning of the reasons is one of the fundamentals of good administration. Fairness requires that reasons should be given for every decision. They ensure E that the official deciding the case has applied his mind to the facts, and the decision is not arbitrary , and they also enable the person affected to properly exercise his right of appeal, before the Service Tribunal, if he feels still dissatisfied, with the decision of the Appellate Authority .
18. ' In this case, the entire proceedings against the appellant started subsequently , were, therefore, illegal and the orders passed, were void ab initio. Nor could the report of the Inquiry Officer be withheld. On the grounds that only minor penalty was being imposed. A subsequent show-cause notice was also dispensed with before imposing the penalty regarding recovery of the 80% cost of the Deisel Engine. The impunged order is accordingly set aside and the appeal is allowed with no order as to costs.