JUDGMENT Dr. Ahdul Qavi Qasi, (Member),-This appeal which has been directed by the appellant against the orders of the Secretary Comminication & Works Department of Sind Karaehi dated 2nd February, 1985 by which the appellant has been awarded a minor penalty of withholding of two increments with cumulative effect. To state in brief the history of the ease Mr. Nazar Muhammad appellant who is now a Senior section Officer High Ways was working as a Executive Engineer Highway Division Sehwen when some construction work of reconditioning of Iudus Highway was in progress between Highway mile 66/0-6*/4. This work had already been contracted when Mr. Nazar Muhammad Soomro joined and assumed the charge. The appellant appears to have executed the works which he undertook from his predecessor Engineer Mr. Abdul Wahid Mahar somewhere in October, 1979 and completed his works.
2. Now that the appellant was posted as Senior Officer Highways he received a show cause notice dated 11th July, 1985 which was issued in exercise of the power confirmed by Rule 4 (A) read with sub-rule 3 of the Rule 5 of Sind Civil Servant (E & D) Rules 1973 (hence for the called Rules) whereby it was decided that it was not necessary to have inquiry conducted through an enquiry officer or an Enquiry Committee. In the same show cause notice and in para-4 a summary of ths misconduct are given. The two paragraphs 4(/) & 4 (if) in which the main allegations are levelled are reproduced as under : (0 That the work of Reconditioning of Indus Highway mile 66/0* 68/4 was let out by him to Mr. Wali Dino Shaikh, Contractor.
The quantity of stone metal required for bare course and sub- base course was 352385 cft, against this secured advance was paid by him to the Contractor for 4,10,000 Cft, I e. Excess pay* meat was allowed for 57415 Cft. Causing corresponding loss to the Government.
(f) That measurement of 1st layer of base course in mile 66/6-67/0 2000 were recorded in the 1st instance by his s jb-ordiaates in M, B. No. 442 (Ls) at Page- U and paid in 12th R, A. Bill and this quantity was carried over upto 16th R A. Bill. Thereafter the measurements of all the items of Work i/c base course were recorded in M. B. No. 442 tLS) at page-74 to 85 omitting the quantity of base course in mile 06/6-6//0 200' already recorded earlier in M. B. No. 442 (LS) page-22. Thus the 17the R. A.
Bill paid to Contractor was for reduced quantity of base course.
This reduction obviously shows that previous payment for base course in mile 66/6-67/0 200' was bogus for which he is responsible."
S. The appellant in his reply to the above notice refused to aeeept all the allegations in length. The reply was considered by the authorised officer (Secretary of C & W) who also heard him in person and imposed upon him the minor penalty of stepage of two increments with cumulative effect.
He then appealed to the Chief Seeretary on 26-1-19S6 and did not get any reply or hearing at the appellate level and filed the service appeal. In memo of service appeal he has refused all the allegations levelled against him in show cause notiee and has gone in parawise to refuse the Govt.
( claim. It is the grievance of the appellant that he was due for consideration of moveover to higher 'basic pay scale and he was mature for promotion in 1985 when the Respondent No. 1 decided to dig out an old case of 1979 (i.e. After a period of 7 years) to block his promotion to the appointment of a Superintendenting Engineer. It is also the ease of appellant that he was not afforded full opportunity of defence by invoking the the proviso (3) of Rule 5 thereby dispensing with the enquiry. In the written on behalf of the Respondeat it has been alleged that Mr, Nazar Muhammad Soomro appellant had taken the loan of Rs. 70,000 from the contractor Mr. Wali Muhammad Shaikh which has yet not been returned.
It is also the stand of the department that the present case has been initiated because the contractor continued to make complaints to the department for payment of daes against the department of the time of the appellant. It is also averred by the department that the case against Mr. Soomro was long earlier initiated and the matter was investigated by the Inquiry and Antieorruption Wing at oae stage and there were some findings with which the Department did not agree. The matter was then referred to Chief Minister Inspection and Evaluation Team. The team held some officers of the department including the appellant responsible. It is their stand that the show cause notice to the officer has not been issued all cf 8 sudden end that a thorugb probe was made before issue of the show- cau*# notice. Rest of the reply in the written statement is a technical counter argument to 'he memo of appeal. We have heard this matter in a full day deliberation which was attended by Mr. Naimatullah Qureshi advocate for the appellaat, the Assistant Advocate General Mr. Abdul Ghafoor Mangi for the respondants. We have also heard the explanations of the Bxecutive Engineer wh > represented the administrative department and assisted the AAG on technical details. Thera are two points on which ws will focus our attention.
First is the application of the proviso of Rule 5(3) of the said rules which dispeme with the procedure of the enquiry and second a highly technical nature of the ease. These two points are interrelated as we will see.
4. It is obvious from the show-cause notiee that the charges contained in *(i) and 4(i/) are of factual nature and if these are not admitted by the accused official (as is the case of the appellant) then reasonable factual evidence was needed to prove such accusations. This onus lay on the administrative department. In absence of a concrete documentary evidence, (which should have been attached to the charge sheet) we cannot accept the simple averment that the enquiry was not deemed necessary.
5. As we see from show-cause notice only two small paras 4(/) and 4(ii) are included which level the charges against the official. It appears to us that the official replied the show cause notice whieh is a comprehensive technical reply in parawise. In instant case appellant did not receive any further communication in respect of his reply and he was not even given the opportunity to see the evidence which was collected by the Respondent No. 1 against him in respect of the statement of allegations particularly contaiied in the above quoted paras of the ststement of allegations. It is our contention and belief that simple statement of allegations is not enough to justify to dispense with the procedure of inquiry. It is also the responsibility of the Administrative Department to provide the accused official with complete evidence along with the statement of allegations if the procedure of 5(3) is to be adopted and justified in terms of doing of natural justice. It may be worthwhile to refer to Wali Ahmed Khan v. Government of Sind (PLC 19*2 C.S. 1 of the Karachi, High Court) in which the learned judges apart from setting aside the impugned order further observed that "In our view the procedure adopted by the Respondent No. 2 in the instance case can not even be justified in terms of the above regulation 71(of KDA) in as much as clause 3(h) of the above regulation contemplate providing a responsible opportunity of showing cause against the action. In the instant case petitioner was not even given the opportunity to see the evidence which was collected by the Respondent No. 2 against him in respect of the statement of allegations particularly contained in the above quoted paras of the statement of allegations. In our view serviag a show cause notice with the statement of allegations without further providing any opportunity to know the evidence upon whieh allegations are based in order to meet the same can not be said to be sufficient compliance of the above provision of the regulation". Case of appellant Mr. Nazar Muhammad Soomro is just similar only the punishment is different. <5. We have also examined the departmental representative who had brought the official record. In his explanation before us he was not able to meet the objections raised by the counsel for the appellant regard- ing the validity of the charges So much so that he did agree with us that the material which had to be supplied to the accused official in order to do with him full justice was not supplied with the show cause notice. It is on these bases that we are inclined to hold that looking at nature of ease its particular circumstances it was more necessary for the Authorised Officer to hold an inquiry. In our opinion when the code is penal and circumstances warrant investigation in detail it is accessary to follow the procedure of inquiry to meet the ends of natural justice.
7. From the proceedings that were held at this Tribunal it was only evident that this matter is highly technical and needed a thorough knowledge of Rules and Procedure of Central PWD code. In their written statement the respondent in para 4 have indicated and accepted that the matter was got investigated by the Enquiries and Anti-Corruption Wing and latter by Chief Minister's Inspection and Evaluation Team and that present show cause notice is based on the findings of the said Teams. If it was felt necessary th t the matter be taken up against the accused official, he was to be properly dealt with and proceeded against within the meaning of Sind Civil Servants Acts of i973 and the subsequent (E&D) Rules of i973 I.e. Under the Rule ?(2) to achieve the same objective. Even if we agree to the recommendation and findings of the above two teams then the report of these findings should have been annexed or appended to the show-cause notiee which was issued to the appellant. Only then the appellant would have been in a position to defend himself properly against the allegations which were levelled against him. Since this was alto not done the appellant has been rendered informationless' in respect of his defence. It is with the above reasons and arguments in view that the appeal was allowed, impugned and case remanded back to the department with short order passed accordingly on 22-12-1986 to read as under $-
8. "Heard arguments of Mr. Naimatullah Qureshi for the appellant and Mr. Abdul Ghafoor Mangi, Assistant Advocate General for the official respondents. For reasons to be recorded separately the appeal is allowed, and the impugned order is set aside. However, the case is remanded back to the competent Authorised Officer with direction that he will cause a detailed inquiry to be held against the appellant and for that purpose appoint inquiry officer. On receipt of the report of the Inquiry Offioer the Authorised officer will be free to take any decision he deems fit in accordance with the rules. There will be no order as to the costs.
K.L.l. 1987 Labour and Service Cases 118 [Azad Jammu and Kashmir] Persant; Muhammad SiddiquE Farooqi, {Chairman), Khawaja Abdus Samad, (Member)
MUHAMMAD SARWAR versus AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR Service Appeal No. 280 6f1983 decided bn 2nd September, 1986.
1987] Muhammad Sarwar v. A tad.Goyt, of the State of AJ&K I^&S,
119. A J & K Civil Servants Act (VI of 1976) ---- S. 12(H)-Compulsory retirement on completion of 25 years Service- Contended that before transfer to A J & K Government the appellant was an employee of Government of Pakistan so his terms of service could not be changed and AJ&K Government bad no authority to retire him- Held: The relevent provision of laws in Azad Kashmir is in no way different from the corresponding provision of Pakistan, therefore, it eannot be said that the terms and conditions of the appellant were changed. The order of retirement is an action of Government of Azad Kashmir in exercise of its lawful power and order passed by the Government does not amount to the changing of the terms and conditions- The retirement in public interest under the Civil Servant Act of Azad Kashmir or that of Pakistan is a part of the terms and condition of Civil Servants-It may a)so be noted that once a person is treated as civil servant of Azad Kashmir Government he will be subject to the 1 > ws of Azad Kashmir and cannot claim any different treatement, even if the laws of Pakistan are different, although there is no conflict in the legal position in Pakistan or Azad Kashmir in this respect as pointed out earlier. (Para. 3)
For the Appellant; Khawaja Muhammad Saeed, Advocate.
For the Respondent :Khawaja Shahad Ahmad, Advocate.
Date .Of hearing : 2nd September, 1986.
Muhammad Siddique Farooqi, (Chairman).-The appellant has brought this appeal against order No. >395-1403 dated 7-6-1*84, whereby he was retired from service and order dated 5-6-1985, whereby his review- petition agamst retirement order was rejected. The appellant raised a number of grounds in the appeal but the counsel for the appellant confined his atguments to only one ground that the Government of Azad Kashmir could not retire the appellant from service because the appellant was a servant of Government of Pakistan. According to him, he was in the service of Government of Pakistan, prior to 1-7-197#, when the Food Department (then known as Civil Supply Department) was functioning under the Government of Pakistan. According to the counsel for the appellant, even if the department was transferred to the Government of Azad Kashmir, the appellant remained a servant of Government of Pakistan, therefore, he was not governed by the service laws of Azad Jammu & Kashmir, nor the Government was competent to change the terms and conditions of the appellant. The learned counsel for the respendent pleaded that this Triaunal has already decided the point, in issue in the case of Agha Ghulam Hussain v. Azad Government, |therefore, the. Appeal merits dismissal. We perused the record and also requisitioned some record from the Food Department of Azad Kashmir Government.
2. It is correct that the appellant was a servant of Government of Pakistan, prior to the transfer of Food Department to the Government of Azad Kashmir but the notidcation No. 682 732/SF/76 dated 5-8-1976 shows that Directorate of Civil Supply and Transport, which was functioning for Azad Kashmir as well as for Northern Area was bifurcated into- two Directorates i.e., one for Azad Kashmir and other for Northern Areas. The Directorate for Azad Kashmir, alongwith the entire staff werkiM in the Direction 0%e as well as iujthe. Sold was tntasfetj&d to the Government of Azad Kashmir, with effect from 1-7-1976, in view of the aforesaid not fication. The posts transferred have been indicated in Annexure 'A' to the notification. Then another notification was issued in continuation of notification dated 5-8-1976. The latter notification of 22-9-1976 contains the detail of the employees working against the posts, which were transferred through the earlier notification. Appellant's services were thus transferred to the Government of Azad Kashmir in compliance with the aforesaid order. The appellant by his conduct opted to serve in Azad Kashmir, therefore, he cannot longer claim to be a civil servant of Government of Pakistan.
3. So far as the terms and conditions of the appellant are eondemed, those have not been changed. The Civil Servant Act of Pakistan also contains a provision authorizing the Goverement to retire a civil servant in the public iaterest after putting in 25 years service qualifying for pension. The relevant provision ef laws in Azad Kashmir is in no way different from the corresponding provision of Pakistan, therefore, it cannot be said that the terms and conditions of the appellant were changed. The order of retirement is an action of Government of Azad Kashmir in exercise of its lawful power and order passed by the Government does not amount to the changing of the terms and conditions. The retirement in public interest under the Civil Servant Act of Azad Kashmir or that of Pakistan is a part of the terms and conditions of Civil Servants It may also be noted that once a person is treated as civil servant of Azad Kashmir Government, he will be subject to the laws of Azad Kashmir and cannot claim any different treatment even if the laws of Pakistan are different, although there is no conflict in the legal position is Pakistan or Azad Kashmir in this respect as pointed out earlier. The counsel for the appellant had referred to an office order of Ministry of Kashmir Affairs No. E-l/i/74 dated 5-3-1977, which we had ourself placed on rec ird' alongwith some other documents. The Ministry of Kashmir Affairs pointed out the civil servant in Pakistan could not be retired on completion of 55 years age, under normal rules, therefore, some persons retired in Azad Kashmir, under the rules, then applicable should be taken back in service, for the reason that the Gove nment of Pakistan was providing funds for the establishment etc. To the Azad Kashmir Government. It was suggested that person retired after having attained the age of 55 years may be recalled. This office order is not a legal document and Government of Azad Kashmir is not bound by this office order passed by Jonit Secretary oi Kashmir Affairs Division. The law should have its own course, notwithstanding such an order, unless there is an agreement to the cont ary.
There is on file another document which is an extract from the minutes of the meeting between Kashmir Affairs Division and the representative of Azad Kashmir Government. Para 8, is reproduced below to whieh reference was also made by the counsel for the appellant; - |The staff of the Directorate dealing with A J K supplies as mentioned in annexure 'A' will be transferred to A.J.K. Government and that dealing with Northern Areas supplied as mentioned in annexure 'B' to the Northern Areas Administration on the date decided upon say 1-7-1976- the post of Director will be transfe>red to the Northern Areas Administration. However, he will continue to func- tiop as Director, Civil Supplies and Transport of Kashmir Affairs Division for a few month! To clear the arrears and old bills of contractors etc ;
(b) As regards the conditions of the Azad Jammu and Kashmir Government regarding non- acceptance of the staff who have completed 2S years of service and those who do not possess clean record, it was made clear to the represents'ives of the Azad Jammu and Kashmir Government that since the Federal Government is paying for the establishment charges tfeey will have to accept the staff as mentioned in Annexure *A* including the staff of Liaision Office Karachi.
The Azad Jammu and Ka>hmir Government can deal with the staff according to their rules governing the temporary employees. However, the Pakistan Government will share the liability of pension contribution to t^e staff in respect of the service rendered by them under the Kashmir Affairs Division, as under the rules."
4. From the contents of the aforesaid paragrah of the minutes of meeting, it is clear that Government of Pakistan insisted upon the Govern* ment of Azad Kashmir to accept the staff, working in the department, under the Government of Pakistan but at the same time it was made clear that the Government of Azad Kashmir can deal with the staff according to the rules, governing the temporary employees. Thus, even if this letter is taken as an agreement between the two Governments, in respect of the employees, who were so accepted by the Government of Azad Kashmir, the Government is nevertheless competent to deal with the affairs of such employees under the laws in force in Azad Kashmir and by no stretch of imagination it can be concluded that such employees retain the status of civil servants of Goverdment of Pakistan It was rather indicated that such employees were to be treated as temporary employees. In view of the legal position in Azad Kashmir, the retirement of appellant could be ordered in the public interest because he had completed 25 years service, qualifying for pension. The impugned order thus suffers no legal defect, so as to give us a jurisdiction to interfere with the same.
5. The appeal it dismissed, with no order as to the costs.