1. A.Q.QAZI (MEMBER).--This appeal which has been directed by the appellant against the orders of the Secretary Communication and Works Department, Government of Sind Karachi, 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 case Mr. Nazar Mohammad appellant who is now a Senior Section Officer Highways was working as an Executive Engineer Highway Division Sehwan when some construction work of reconditioning of Indus Highway was in progress between Highway mile 66/0-68/4. 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 Servants (E&D) Rules, 1973 (henceforth 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 the misconduct are given.
3. The two paragraphs 4 (i) and 4(ii) in which the main allegations are levelled are reproduced as under:
(i) 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 base course and sub-base course was 3,52,585 C. Ft. Against this secured advance was paid by him to the Contractor for 4,10,000 C.
4. Ft. i.e. Excess payment was allowed for 57,415 C. Ft. Causing corresponding loss to the Government.
(ii) That measurement of 1 layer of base course in mile 66/6-67/0+2000 were recorded in the 1st instance by his subordinates in M.B.No.442 (LS) at Page 22 and paid in 12 R . A . Bill and this quantity was carried over upto 16th R . A .Bill. Thereafter the measurements of all the items of work i.e base course were recorded in M.B.No. 442 (LS) at pages 74 to 85 omitting the quantity of base course in mile 66/6-67/0+200' already recorded earlier in M.B.No. 442 (LS) Page 22. Thus, the 17 R .
5. 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."
6. The appellant in his reply to the above notice refused to accept 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 stoppage of two increments with cumulative effect.
7. He then appealed to the Chief Secretary on 26-1-1986 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 notice and has gone in parawise to refuse the Government 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 Superintending Engineer. It is also the case of appellant that he was not afforded full opportunity of defence by invoking the proviso (3) of Rule 5 thereby dispensing with the enquiry. In the written statement on behalf of the responder t it has been alleged that Mr. Nazar Mohammad Soomro appellant had taken the loan of Rs.70,000 from the Contractor Mr. Wali Mohammad 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 dues 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 Anti-corruption Wing at one 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 of a sudden and that thorough probe was made before issue of the show-cause notice. Rest of the reply in the written statement is a technical counter-argument to the memo of appeal. We have heard this matter in a full day deliberation which was attended by Mr. Naimatullah Qureshi Advocate for the appellant, the Assistant Advocate---General Mr. Abdul Ghafoor Mangi for the respondents. We have also heard the explanations of the Executive Engineer who represented the administrative department and assisted the A.A -G. On technical details.
8. There are two points on which we will focus our attention.. First is the application of the proviso of Rule 5 (3) of the said rules which dispense with the procedure of the enquiry and second a highly technical nature of the case. These two points are interrelated as we will see.
9. It is obvious from the show-cause notice that the charges contained in 4 (i) and 4(11) 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 carrot accept the simple averment that the enquiry was not deemed necessary.
10. As we see from show-cause notice only two small paras 4 (i) and 4(ii) are included which level the charges against the official. It appears to us that the official replied the shoo--cause notice whichst th th is a comprehensive technical reply in parawise. In instance 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 contained in the above-quoted paras of the statement 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 alongwith the statement of allegations if the procedure of 5 (3) is to be adopted and justified in t9rms of doing of natural justice. It may be worthwhile to refer to Wali Ahmad Khan v. Government of Sind PLC 1982 (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 cannot even be justified in terms of the above regulation 71 (of KDA) inasmuch as clause 8 (b) of the above regulation contemplates providing a responsible opportunity of showing cause against the action.
11. 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 serving a show- cause notice with the statement of allegations withcut further providing any opportunity to know the evidence upon which allegations are based in order to meet the same cannot be said to be sufficient compliance of the above provision of the regulation. Case of appellant Mr. Nazar Mohammad Soomro is just similar, only the punishment is different.
12. 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 regarding 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 case and 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 investigations in detail it is necessary to follow the procedure of inquiry to meet the ends of natural justice.
13. 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 that 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 Act of 1973 and the subsequent (E&D) Rules of 1973 i.e. Under the Rule 5 (2) to achieve the same objective.
14. 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 notice 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 also 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 order set aside and case remanded back to the department with short order passed accordingly on 22-12-1986 to read as under: "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 Officer 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.
15. M.Y.H/98/Lb/S