' ABDUL QADEER CH AUDHARY (CHAIRMAN).-The appellant was holding the post of Deputy Commissioner, Nasirabad in the month of June, 1981 when bye-election to a vacant seat of District Council Nasirabad from Union Council Manju Shoori area in Sub-Tehsil Tamboo of Pat Feeder Sub- Division was held. The appellant was the Returning Officer for the said bye-election. The polling scheme was approved by the Baluchistan Local Council Election Authority, as required under the Baluchistan Local Government (Election) Rules, 1979. On 26th June, 1981 when the bye-election was held, a clash took place between the rival groups, at various places, in the Pat Feeder Sub-Division ; in which twenty persons lost their lives. On 31st August, 1981 the following charge sheet was issued to the appellant :- "You. Raja Muhammad Akram former Deputy Commissioner Nasirabad are charge-sheeted as follows :-
(1) That during your posting as Deputy Commissioner, Nasirabad, during bye-election to a vacant seat of the Manjoo Shori Union Council a clash took place in the Pat Feeder Sub-Division on 26th June, 1981 in which about 23 lives were lost.
(2) That you as Administrative head of the District failed to perceive the tension in the area. You did not also devise system which could keep you abreast of and enable you to anticipate developments which might affect the law and order situation.
(3) That security arrangements at the polling stations were quite inadequate. No communication was established with these polling stations with the result that no help could be provided when the tragedy occurred.
(4) You did not agree to the requests of the notables of the area that the polling station may be shifted away from village Shori Data (where the violence began on the polling day), to R. D. 588 where accommodation for the polling stations was available. The place had been used as polling station in the previous elections and had an open space all around and had also necessary facilities.
(5) You, in your capacity as Returning Officer, were responsible for the proper conduct of the polls.
In your capacity as executive head of the District also you were responsible to see that the security arrangements concerned with the conduct of the bye-election had been made satisfactorily and that polling was taking place in a state of peace. On the day of polling, you came to Dera Murad Jamali to visit the polling stations but had only a round of Dera Murad Jamali Bazar and you returned to that Pat at 12-30 p. m. Thus, you did not visit any of the polling stations.
(6) Persons carrying fire-arms were allowed to remain within the prescribed limits of polling stations.
2. From the above it appears that you did not have a correct perception of the state of affairs in the area and your own responsibilities in connection with maintenance of law and order particularly on the eve of the bye-election, which speaks of your inefficiency.
3. You are, therefore, hereby required to explain within 14 (fourteen; days of the receipt of this charge-sheet as to why disciplinary action under the Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1974 should not be taken against you.
4. Your explanation also stating whether you desire to be heard in person and produce any defence witnesses should reach Mr. Muhammad Umer Secretary, Food Department who has been appointed as Enquiry Officer in this case, within the stipulated period failing which it will be presumed that you have no explanation to make."
' This charge-sheet was accompanied with the statement of allegations. Malik Muhammad Umer was appointed as Inquiry Officer who held joint enquiry against the appellant and two other officers. The Inquiry Officer recorded the statements of many witnesses and came to the conclusion that none of the charges has been proved against the appellant, Mr. Gul Muhammad Assistant Commissioner and Mr. All Akbar Tehsildar. It was observed by him, "the Election Authority is prima facie responsible for the lapse in locating the polling stations and the Presiding Officer for ignoring the presence of armed persons in or around the polling station. For the lapse in preparation of the polling scheme Mr. Muhammad Akram in his capacity as Returning Officer is responsible so far as the location of the polling station Shori Data is concerned". It appears that the Government did not agree with the finding of the Inquiry Officer, and by means of order dated 19th July, 1983 removed the appellant from Government service with immediate effect. The appellant filed review application to the Governor of Baluchistan which was rejected by the Governor ; hence the present appeal.
2. We have heard the learned counsel for the appellant and Mr. K. M. Kohli Advocate for the respondent. The learned Assistant Advocate-General has also assisted us. We have also perused the record.
3. The learned counsel for the appellant has stated that the charge-sheet was issued to the appellant under rule 5 (2) of the Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1974 hereinafter called the "Rules") by the Chief Secretary who is the authorised Officer. Under rule 5 (4), on receipt of the Enquiry Officer, the authorised officer shall determine whether a charge has been proved and if it is proposed to impose a minor penalty, he shall pass order accordingly, and if it is proposed to imposed 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, findings of the Inquiry Officer and his own recommendations regarding the penalty to be imposed.
The authority shall pass such order as it may deem proper. The learned counsel has submitted that the authorised officer had proposed minor penalties, therefore, the case of the appellant could be referred to the authority under the rules. There is force in the contention. We have examined the file and have observed that the then Chief Secretary Sheikh Jamil Ahmad who had issued the charge- sheet, had recommended for the imposition of the following penalty.
"His further promotion and annual increments be stopped with cumulative effect for the next 3 years. The officer is to retire in the year 1985."
' The minor penalties have been mentioned in rule 4. The minor penalty could be imposed by the Chief Secretary as an authorised officer. There was no necessity to refer the case to the authority for his approval. After the authorised officer had come to a conclusion, the matter attained finality and it could not be reopened by the successor Chief Secretary. He however discussed the matter again and after discussion recommended to Governor that a show-cause notice be issued to the appellant in the terms, "why major punishment should not be awarded". The Governor agreed with the recommendation and a fresh notice was issued on 16th November, 1982, which reads as under :- "You Raja Muhammad Akram when posted as Deputy Commissioner, Nasirabad District failed to perceive the tension in the area generated due to the known enmity between the Jatak and Magsi tribes. You also did not make adequate security arrangements at the Polling Station on the eye of the bye-election, to the vacant seat of the Manjoo Shori Union Council, held on 26th June, 1981, as a result of which about 23 lives were lost in the Jatak-Magsi clash. As an administrative head of the District you failed to devise any system by which you could keep yourself abreast of the developments having bearing on the law and order situation, and to deal with the same effectively and in time.
' Now, therefore, you are hereby called upon to show cause within 7 days, of receipt of this notice as to why action should not be taken against you, and one of the major penalties under Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1974 should not be imposed upon you. If your reply is not received within the prescribed period, it shall be presumed that you have no cause to show and further action in the matter will be taken on that assumption."
4. The appellant submitted his reply and also requested for personal hearing to him. The authority then passed the impugned order. The learned counsel for the appellant has assailed the show- cause notice, dated 16th Novembers 1982 on the ground that once an action has been taken under rule (2) of the rules, another action under rule 5 (3) of the Rules cannot be taken. The learned Assistant Advocate-General on the other hand has stated that the show-cause notice dated 16th November, 1982 is not a charge-sheet under rule 5 (3) of the rules, but it is a second show-cause notice to enable the appellant to give his explanation with regard to the penalty proposed to be imposed by the authority. While in the first charge-sheet, dated 31st August, 1981, six charges were levelled against the appellant in the show-cause notice, dated 16th November, 1982 it has been mentioned that the appellant failed to perceive the tension in the area generated due to the known enmity between the Jatak and Magsi tribes. In the first charge-sheet, separate charges have been enumerated, but in the second show-cause notice, a uniform charge has been made against the appellant. There is no vital difference between the two charges, but in the second notice, dated 16th November, 1982 it has been mentioned that the appellant failed to perceive the tension in the area due to the enmity of Jatak and Magsi tribe. This allegation was not made in the charge-sheet, dated 31st August, 1981. The appellant has denied this allegation and there is nothing on record to substantiate this charge. We do not agree with the learned A. A.-G. That show-cause notice, dated 16th November, 1982 is a second show-cause notice to afford another opportunity to the appellant. There is no warrant for such proposition. The rules do not provide for a second show- cause notice. Additionally such show-cause notice had to be in continuation of the same proceedings. In this proceeding the appellant was absolved of the charge. The authorised officer has recommended for minor penalty, therefore, second show-cause notice could not be issued by discarding the finding of the Inquiry Officer and the proposed action by the authorised officer. It should have been in consonance and not in derogation of the proceedings already taken. To our mind, at the most, the show-cause notice, dated 16th November, 1982 was issued under Rule 5 (3); as there is no other provision for proceeding against a Civil Servant under the rules. But no action could be taken under Rule 5 (3) as the action, had already been initiated under rule 5 (2). At the time of initiation of the departmental proceedings the authorised officer has to decide either to proceed under rule 5 (2) or 5 (3). He has to adopt one of the two courses ; but he cannot adopt both the procedures simultaneously or one after the other. The holding of enquiry was not dispensed with, therefore, the issuance of show-cause notice, dated 16th November, 1982 under rule 5 (3) cannot be accepted by any fiction of law. Now let us consider the matter from another angle. Accepting the proposition that the authorised officer had the authority to take action under rule 5 (3). Then what was the material before the authorised officer for proceeding against the appellant ? He had set aside the finding of the Enquiry Officer and the recommendation of the then Chief Secretary. No further material was brought against the appellant. It has been observed by the Chief Secretary" there is positive circumstantial evidence in the case to establish that the Local District and Sub-Divisional authorities failed to perceive the tension existing in the area". It is therefore admitted that there was no direct evidence available in the matter. The learned counsel appearing on behalf of the respondent has failed to point out any circumstantial evidence, what to speak of "positive evidence". In fact the only material available uptill that time was the report of Inquiry Officer which was based on evidence recorded by him. It has not been shown as to what circumstantial evidence has spelt out from the statements of the witnesses recorded by the Inquiry Officer. Absence of any evidence, the action taken by the respondent cannot "be supported by any stretch of legal acumen. No reason has been assigned in rejecting the recommendation of Inquiry Officer. There is another aspect of the case. As stated earlier the then Chief Secretary had no authority to sit on the decision of his predecessor particularly when fresh action was taken on the same material.
5. In the instant case, the authorised officer has proposed major punishment and the authority has passed the order of dismissal. The authority in imposing a major penalty has also to apply his mind to the facts and circumstances of the case. In the present case, it appears that the authority did not consider the report of the Inquiry Officer and the evidence adduced before him but the main reason which prevailed with the Government functionaries was that twenty persons had lost their lives. (In the charge-sheet 23 persons has been mentioned). It was an unfortunate incident but the question for determination was whether the officer was guilty of the charges made against him. A stereotype order is not to be made but an order passed by the authority must in supported by the material on record. The Inquiry Officer has not held the appellant' guilty of the charges. The authority has to show as to how the impugned! Order had been made. The authority should have recorded the grounds 'D on which it differed from the finding of the Inquiry Officer and the recommendation of the then Authorised Officer but the file produced by the respondent is silent about it. In Ch. Muhammad Latif v. Azad Government of State of the Jammu and Kashmir , it has been observed that two alternate procedures are available to the authorised officer at the beginning of disciplinary proceedings. Both procedures cannot be pressed into service simultaneously, but only one to be chosen for observance. Once charge-sheet served, inquiry committee appointed and after receipt of report of inquiry committee, recourse adopted to show- cause notice procedure tantamounts to transgression of statutory rules invalidating whole proceedings including ultimate penalty order resulting therefrom. The observation made in this case applies to the facts of the present case. In the present case also after adopting the enquiry procedure, a second procedure was adopted by the authorised officer. In Farooq Ahmad Malik v.1 Central Board of Revenue in the similar circumstances, the penalty was set aside. In this case, the authorised officer not proposing any major penalty and submitting case to the authority for seeking approval for reinstatement, the authority passing order for major penalty of dismissal, it was observed "the authority had no locus standi to issue the impugned order where no recommendations for major penalty was made by the authorised officer".
6. We have read the report of the Inquiry Officer and the evidence produced before him. We do not see that the finding of the Inquiry' Officer is either perverse or based on no evidence. We have read the statements of the witnesses. P. W. Abdul Aziz, Assistant Director, Local Government Department has stated that the Polling Stations were exactly the same which were in the year 1979. He further stated that he did not have any intimation or knowledge that any tension existed in the area. He was satisfied with t e arrangement made for the conducting of the elections. No complaint due to him regarding the polling arrangements or the location of polling station. The polling stations were the same as had been approved by the Election authority. He did not notice any tension even when the polling was suspended by the Presiding Officer. P. W. Sultan Muhammad Presiding Officer has stated . That no complaint was made to him that the premises selected for the polling station were not suitable for the purpose. He was satisfied with the security arrangements and he did not notice any tension when the polling commenced. He did not inform the Returning Officer when he had stopped the polling. He was satisfied that nothing untoward would happen. He had not sent any report regarding tension, etc to the Returning Officer. P. W. 3 Mr. Sikandar Khan, Assistant Presiding Officer has given an identical statement. P. W. 4 Sardar Mohim Khan has stated that Mir Gul Jatak informed him that instead of village Shoori Data, polling station should be located at the old place i. e. R. D. 558 on the canal bank. P. W. 6 Mr. Ghulam Hyder, Jamadar Levies has stated that there was no apprehension of breach of peace during those days. There was no unrest. He was present when the trouble started and the incident took place. He did not see any person carrying a weapon. Mr. Abdul Karim, P. W. 7 has deposed that he did not see any person carrying arms within the premises of the polling station. He did not see any armed men at the polling station. P. W. Hazoor Bakhsh, Naib-Tehsildar has stated he was to maintain law and order at the polling station. During the polling hour, it was all calm and the polling was going on in an orderly manner. Polling peacefully continued upto 4-00 p. m. He did not notice any tension throughout. He has also stated that he did not see any one carrying fire arms near the polling station. P. W. 10 Mr. Ejaz Ali, S. D.
0. And P. W. 11 Sher Muhammad have stated the same fact. P. W. 12 Abdul Ghafoor was Presiding Officer at the polling station Goth Saleh Muhammad. He has stated that he was satisfied with the arrangements made in connection with the polling at this polling station. P. W. 13 Shoib Sadaf, Superintendent Police Nasirabad has deposed that he did not feel that on account of bye-election, there was any tension in the area or between the contesting candidates. Under the Martial Law Orders carrying arms in the area was prohibited, as such, there was no necessity to issue an order under section 144 Cr. P. C. Prohibiting carrying of fire arms. As far as this bye-election was concerned, there was no apprehension that there would be any breach of peace. The arrangement was satisfactory and according to his calculations, were better than those made in the year, 1977 elections. P. W. 14 Abdul Rehman Jamali has stated that he cannot say whether the Levies arrangements for the maintenance of law and order in the area were enough and adequate or not.
From the record, it is also clear that section 144, Cr. P. C. Was imposed in the area. In view of such evidence, it cannot be urged that the finding of the Inquiry Officer is based on no evidence.
7. Learned counsel for the respondent has referred to the statement of Sardar Mohim Khan, but the entire statement of this witness does not show that he has implicated the appellant. According to this witness he went to the Assistant Commissioner and requested him to establish polling station at R. D. 558 on the canal bank. The Assistant Commissioner replied that the decision in this regard rested with the Deputy Commissioner and that he had not agreed. This witness has admitted that2 they did not go to the Deputy Commissioner and there was o apprehension of breach of peace in connection with the bye-election
8. During the course of arguments it was considered to set aside the order of removal and maintain the proceedings upto the stage of recommendation made by Sheikh Jamil Ahmed, the then Chief Secretary, leaving it open to the appellant to file appeal against such decision to the competent authority as provided under the rules. But having examined the case in its real perspective, we observed that it would be an exercise in futility and decided to dispose of the appeal on its merits.
9. The overall conclusion which we have drawn from the above facts are as under :-
(i) The Inquiry Officer has correctly appreciated the evidence and the authorised officer and the authority has not given any reason while disagreeing with the findings of the Inquiry Officer. (It is also interesting to note that some action was proposed to be taken against the Inquiry Officer as his finding was not acceptable to the authority). The Authorised Officer, the then Chief Secretary has proposed the minor penalty which he was competent to pass and the case should not have been referred to the authority for any purpose.
(ii) The successor Chief Secretary issued a show-cause notice which could not be done under the Rules. The authorsed officer could either initiate proceedings under rule 5(2) or 5(3) of the Rules, but he cannot proceed simultaneously under both the rules. After the receipt of the inquiry report, wherein it was found that the charges against the appellant had not been proved, the recourse to show-cause notice within the meaning of rule 5 (3) of the rules is unwarranted and illegal.
(iii) The recommendation of the Inquiry Officer is based on evidence. It is a case of no evidence.
The witnesses examined by the Inquiry Officer have not made any charge against the appellant that either he was in-efficient or failed to perform his lawful duty.
(iv) The successor Chief Secretary cannot sit in appeal on the final I decision of his predecessor.
The upshot of the above discussion is that the impugned order cannot be sustained on any logical ground. We accept this appeal, set aside the impugned order, dated 19th July, 1983. The appellant should be reinstated to his service with effect from the date of the suspension, with all the benefits accrued to him under the law. There shall, however, be no order as to costs. 1982 PLC (C. S.) 374 2 1983 PLC (C. S.) 80