1. MUNAWAR ALI KHAN (CHAIRMAN).--In this appeal Syed Zafar Ali Askari has challenged the order of his compulsory retirement, dated 12th June, 1984 passed by Secretary to Government of Sind, Housing and Town Planning, Local Government and Rural Development Department. As disclosed in the memo of appeal, the appellant was Sub-Engineer in the Peoples Works Programme, District Nawabshah when he was suspended by Chairman, District Coordination Committee, by his order dated 12-9-1974. On the same date he was also served with a charge-sheet containing seven charges to which he submitted his reply on 30th September, 1974 within the deadline extended for this purpose. Initially Mr. Fida Hussain, the then Deputy Director, P.R.D.D. Tharparkar was appointed as Inquiry Officer to hold the necessary inquiry against the appellant but the enquiry was ultimately conducted by Mr. Nisar Ahmed Memon, the then Project Engineer, Agroville Badin who was subsequently substituted in place of Mr. Fida Hussain. On receipt of the Inquiry Report, dated 16-4- 1975 the authority concerned gave the appellant a show-cause notice, dated 3-5-1979 who refuted the charges specified in the said notice. However, after giving him personal hearing after five years (i.e. On 27-5-1984), the impugned order was passed on 25-6-1984 whereby the appellant was awarded major penalty of compulsory retirement from service. He preferred appeal, dated 10th July, 1984 from the order of his compulsory retirement but as no decision was taken by the Appellate Authority within 90 days, he filed the present appeal.
2. We heard the arguments of the learned counsel for the parties and also with their help went through the relevant documents necessary for disposal of the appeal.
3. It may be convenient to reproduce the details of the charges levelled against the appellant. The charge-sheet reads as under:- "CHARGE SHEET I, Pir Ghulam Rasool Shah M.N.A. Chairman District Co--ordination Committee and Controlling Authority Peoples Rural Development Department Tharparkar hereby charge-sheet you, Mr. Z.A.
4. Askari Sub-Engineer P.W.P. Markaz No.II Mirpurkhas as under:-
(i) The following works were carried out under your supervision.
(i) Construction of Katcha Road Earth Work Jhuluri Mori to 78 mile Mori.
(ii) Construction of Katcha Road Earth Work Mir Din Muhammad to Umerkot pacca road.
5. (i.e) Construction of Girls Primary School Deh 237.
6. You recorded the measurements of the abovementioned works and the contractors were paid running bills, while at the time of final measurements which were checked by Mr. Muhammad Suleman Chandio, Assistant Engineer, it was found that the measurements recorded by you previously for all the above three works were much in excess and hence excess payments were released to the contractors.
(ii) The Deputy Director P.W.P. Visited Katcha road namely Ramjago to Samaro Pithoro Road and found that the earth work was not properly done, but the payments were made to the contractor as estimated requirements.
7. (i.e) BRICK PAVED ROAD FROM LAKHO SHAH TO 4TH MILE MIR WAH PACCA ROAD.
8. This work was also previously executed under your supervision, but when the same was transferred to another Sub-Engineer and the measurements for final bill were recorded it was found that an excessive quantity of 500 ft. Brick pavement was allowed to the contractor in the previous measurements which resulted into minus bill even after the addition of the amount of the escalation. This proved undue financial aid to the contractor and fraud with Government.
(iv) CONSTRUCTION OF LACK TOPPED ROAD.
(i) Akri Pithoro Road.
(ii) Shadi Pali to Umerkot Road.
9. The lead for item of earth work for Akri Pithoro Road was allowed from 500 ft. Whereas actually the earth was taken from nearby roadside through tractors and from the earthen dunes which were quite adjacent to the road. Besides it, the material for which the contractor has since been paid is not available at site, viz. Bitumen etc. As regards the items of earth for Shadipali Road, it is to say that the lead of 2100 ft. Was allowed, but as a matter of fact the earth of road of roadside was excavated by the tractor and used on the road. Moreover, the material paid to the contractor is also short on the site, specially the Bitumen is not available at site for which the payments have already been made to the contractor.
10. It proved that you were mixed up with contractor and Government was made to sustain extra expenditure paid in the shape of lead allowed to the contractor.
(v) CONSTRUCTION OF KATCHA ROAD FROM 78 MILE TO DEH 237 IN FAVOUR OF MR. MUBASHAR AHMED.
11. The running measurements were recorded by you and bill for the same was paid to the contractor, after withholding 10$ amount of the bill for want of checking measurements by the Assistant Engineer concerned.
12. Now the final measurements have been recorded by the Sub---Engineer and checked by the Assistant Engineer but I am shocked to note that about 3/4 mile is not constructed and payment for the same has already been released.
(vi) CONSTRUCTION OF PRIMARY SCHOOL BUILDING MAKKHAN SAMIR This work was under your supervision, the running payments were made to the contractor according to the measurements recorded by you. The final measurements have now been recorded by Sub-Engineer. The final bill has gone into minus, as the previous measurements were recorded much in excess.
(vii) CONSTRUCTION OF QUARTERS @ MODEL VILLAGE KHAN The work of the above scheme was started under your supervision. The Deputy Director has checked the foundation Masonry and has found it beyond the specifications as provided in the estimate. From technical point of view it is very serious, which cannot be overlooked. Naturally the R.C.C. Roof will be laid over this structure as provided in the estimate which will never at all bear the load of the roof and it is apprehended that it may collapse and result in losses of lives.
13. You are, therefore, called upon to show cause in writing within ten days of the receipt of the charge-sheet as to why disciplinary action should not be taken against you.
14. You should also state in writing within the stipulated period whether you wish to be heard in person and want to produce any evidence.
15. You should submit explanation direct to Mr. Fida Hussain Soomro Deputy Director P.R.D.D.
16. Tharparkar who has been appointed as an Enquiry Officer in this case, failing which ex parte proceedings will be taken against you."
17. The above document clearly shows that the charges were of factual nature. In his detailed reply submitted by the appellant on 30th September, 1974 he has obviously denied the allegations contained in the charge-sheet. In view of the appellant's denial, the charges were required to be proved by positive evidence before any punishment was inflicted on the appellant for the said charges. No doubt the Authorised Officer rightly decided for holding a detailed enquiry into the charges levelled against the appellant and even appointed enquiry officer for that purpose. But the grievance of the learned counsel for the appellant was that the enquiry officer made violations of the relevant rules and thereby the whole process of enquiry was vitiated.
18. The procedure for holding enquiry through Enquiry Officer or Enquiry Committee is laid down in Rule 6 of the Sind Civil Servants (E & D) Rules, 1973 (hereinafter referred to as the said rules). As is clear from clause (a) of sub-rule (1) of the above rule, the charge-sheet is to be accompanied by statement of allegations explaining the charges and any other relevant circumstances which are proposed to be taken into consideration. However, the admitted position is that statement of allegations was never supplied to the appellant. Thus, clear violation of the requirement of the said rules was made. In our opinion the purpose of the statement of allegations is to elaborate and clarify the charges made against the accused so that he should have clear notice of the same for preparing his defence. It would appear that the charges detailed in the charge-sheet are fairly exhaustive and needed no further elaboration. Accordingly no prejudice seemed to have been caused to the appellant in his defence due to non-supply of the statement of allegations to him.
19. Even if the requirement of supply of statement of allegations was condoned, still there were other flagrant violations of the said rules which could not be ignored. As stated above since the appellant had denied the allegations made against him he could not be punished until those allegations were proved against him by positive evidence. The evidence for proof of the allegations may be in the shape of documents or oral evidence. Sub-rule (2) of rule 6 referred to above required the Inquiry Officer to inquire into the charges and examine such oral or documentary evidence in support of the charges or in defence of the accused as was considered necessary.
20. Under the same sub-rule the accused was also entitled to cross-examine the witnessess against him. Keeping in view the above requirements of the rule 6, the appellant has pinpointed in para. 11 of the memo of appeal the legal infirmities in the departmental proceedings. The foremost draw- back pointed out by him was that no enquiry was ever conducted by the Inquiry Officer nor had he examined any prosecution witness in presence of the appellant nor the latter was afforded any opportunity to cross-examine any such witness. In reply to this assertion, all that is mentioned in the written statement filed on behalf of the respondents is; "No comments". This only means that the contention raised by the appellant has nor been denied.
21. The next defect to which the appellant has drawn attention ink the memo of appeal, is that no copy of the enquiry report and findings of the Inquiry Officer had ever been furnished to him. This allegation too has not been denied by the respondents in their written statement. The third contention raised by the appellant in the memo of appeal is that no opportunity was given to him to adduce his defence orally or written. The respondents' reply as given in the written statement is to the effect; "need no reply", which only means that the assertion is so unexceptionable that no reply can be given. The other plea taken by the appellant in the memo of appeal is that though in his reply to the charge-sheet, he has specifically mentioned that he wanted to cross-examine the witnesses for prosecution and to produce witnesses in his defence, yet he had not been afforded either of the opportunities. This plea has also been replied by the respondents in the same manner namely by stating in the written statement; "needs no reply". Thus, the appellant's said assertion is admitted.
22. It would appear from the above appraisal of the respective stands taken by both the parties that all the legal defects pointed out by the appellant in the memo of his appeal have been admitted by the respondents in their written statement. Therefore, the arguments of the learned counsel for the appellant was that the entire process of departmental enquiry was vitiated and the impugned order was not sustainable. In this connection he placed reliance on Syed Mir Muhammad v. N.-W.F.P. Government PLD 1981 SC 176 wherein it was observed: "After giving our anxious consideration to the submissions made by the learned counsel for the parties we have formed the view that in a case where a formal inquiry is held, it seems to be an implicit requirement of the relevant rules that a copy of the inquiry report should be furnished to the accused official so as to enable him to offer his explanation with regard to the adverse findings, if any recorded against him by the Inquiry Officer or the Inquiry Committee, as the case may be Such a requirement cannot be brushed aside by saying that it would amount to a second show- cause notice."
23. The above authority clearly supports the argument of the learned counsel for the appellant inasmuch as that since the inquiry report has not been furnished to the accused official, the impugned order which is based on such enquiry report cannot be sustained.
24. Besides above the enquiry report makes an interesting reading. It appears from the report that undoubtedly the enquiry officer had taken great pains to search for truth of the charges levelled against the appellant, but the manner in which he conducted the probe was not warranted by the rules. There is no indication in the enquiry report that all those who were in one or other way associated with the affairs forming the basis of the charges against the appellant were examined in his presence and he was allowed opportunity to cross-examine them. Even the appellant has not been allowed to examine any witness in his defence. In these circumstances it cannot be held that the three charges finally mentioned in the show-cause notice, dated 3rd May, 1979 were proved against the appellant. Consequently awarding of punishment by the impugned order was not called for We, therefore, allow the appeal with no order as to costs and set aside the impugned order.
25. It may however be mentioned here that since the appeal has been allowed purely on technical grounds, we leave it open to the authorities concerned to consider the feasibility of holding a fresh enquiry against the appellant strictly in accordance with the said rules. While taking a decision in this regard or if they decide to hold fresh enquiry while awarding punishment to appellant the said authorities would be well-advised not to overlook the indirect agony that the appellant has already suffered. It would appear that he has been dragged in the case right from the day 12-9-1974 on which he was not only suspended but was also served with charge-sheet upto the day 12-6-1984 when the impugned order was passed. As a matter of fact the appellant's sufferings continued even beyond the date of the impugned order as thereafter he took the matter in appeal before the departmental authority and then approached this Tribunal and patiently waited until the announcement of this judgment.
26. A.A./128/Sr.S.