A.Q. QAZI, MEMBER.--This single order shall govern and dispose of Service Appeals Nos. 77 of 1986 and 78 of 1986. The above appeals have been filed against the orders of Medical Superintendents, Civil Hospital, Karachi. Whereby appellants Saeed Ahmed and Syed Salimuddin, both Dispensers of Civil Hospital, Karachi have been compulsorily retired w . e. f . 16th March, 1986 (P . M ) .
1. The facts relating to the case are almost identical in both the appeals and a single enquiry which was conducted relates to both these cases. This single order will therefore, be sufficient to dispose of both appeals contemporaneously. As this case relates to facts it would of interest to briefly narrate the background which will also be necessary to understand the remifications emanating of this case. The appellants Messrs Saeed Ahmed and Syed Salimuddin joined the Government service as Dispensers, Civil Hospital, Karachi in year 1952 and till the date of their impugned retirement they appear to have completed almost 34 years of service. During this period for most of their time they have been serving as Dispensers (instrument section) of tfioe Medical Stores of Civil Hospital, excepting for brief appeal when they were transferred to work as Dispensers in the other section of the same Hospital. It may be important to mention at the very out set that both the appellants at no stage were ever initially appointed as Store-Keepers though they were transferred and deputed to perform the functions of Store-Keeper in the Medical Store of the Hospital now and then at intervals.
2. While they were serving as Dispensers in the above-stated section of the (Medical Store of the Civil Hospital) order for supply of catguts (Thread spun from the dry animal intestine) was placed with Messrs Jamil Brothers, Karachi, vide M.S. Letter No P&P (CH) 84-85/KMC-G.I/2697, dated 20-5- 1985 which were duly received and signed by Mr. Salimuddin. Dispenser Medical Store Instruments Section). The material continued to be with the Medical Stores (instruments Section) and was under issue to various sections and operation theatres of the Civil Hospital till 26-5-1986, when it was detected on routine inspection that a part of the material supplied b~ the firm was of stolen material bearing stamps of J.P. M.C. Armed Forces and M.S.D. Punjab R.M.O. General-1, Dr. Munawar Qureshi who is said to have detected this case, reported this matter to the Medical Superintendent for enquiry and investigation.
3. Consequent upon the report from the then RMO General-I the Medical Superintendent set up an Enquiry Committee with Professor Razia Latif Ansari as its chairperson and Dr. Mashoor Alam Shah, Dr. O.K. Ghauri and Dr. H.B. Met-non, Deputy Medical Superintendents as its Members. It appears that the above Committee headed by Professor Razia Latif Ansari was to give preliminary findings in this affairs. The said Committee examined the matter and submitted it preliminary findings on 3rd June, 1985. Accordingly this case was referred to FIA and simultaneously Messrs Saeed Ahmad and Salimuddin were placed under suspension on 13th August, 1985. And the said appellants were charge sheeted for.
(1) Gross misconduct.
(2) Negligent and carelessness.
(3) Alleged cheating.
4. By an order of 6th November, 1985 issued by Dr. Aftab Ahmed Qureshi, Medical Superintendent, Civil Hospital, Karachi, Dr. Qaz1 Moinuddin Ahmed and Dr. Ghulam Nabi Kazi, Registrar, Civil Hospital, Karachi were appointed as members of the enquiry committee who conducted an enquiry and submitted an enquiry report. This report comprises of seven pages and was submitted on 16th January, 1986. Copies of the enquiry report were later supplied to Messrs Saeed Ahmed and Salimuddin on 16th January, 1986. Mr. Saeed Ahmed and Syed Salimuddin were issued a show- cause notice separately and they were called upon to show cause as to why disciplinary action should not be taken against them in accordance with the S . C . S . (E & D ) Rules of 1973 (hereinafter called E & D Rules),
5. Mr. Syed Salimuddin did not add anything to what he had pleaded before. He only stated that he was innocent and requested that a sympathetic view be taken. Whereas contrary to that in his reply of 19th February, 1986 Dispenser, Mr. Saeed Ahmed assailed the validity of the enquiry report and declared it to be biased apart from its being procedurally bad in law. Mr. Saeed Ahmed further asserted that no oral evidence was carried out in his presence and as such he thought that entire enquiry was rendered nullity in the eyes of law. On the receipt of replies from Mr. Saeed Ahmed and Syed Salimuddin both the appellants were compulsorily retired vide Order No. PP.III(6) Dispenser/ Per: II/-2002 dated 1-4-1986
6. We have heard in a' detailed deliberation the learned counsel for the appellants Mr.Manzoor Ali Khan and Mr. Rasheed Akhtar Qureshi, counsel for the Government. On this day Dr. Ghulam Nabi Kazi one of the learned Members of the Enquiry Committee which wrote the enquiry report was also present we have heard him in presence of appellants and examined the record put before us which included the enquiry report of the present Committee and preliminary report.
The learned counsel for the appellants Dr. Manzoor Ali Khan has raised following legal objection which according to him is a legal infirmity. His main point of contention is that in the enquiry which was to be conducted in accordance with the proviso 5 of E & D Rules has not been followed in letter and spirit as much as Sub-Rule (2) of the Rule 6 has been violated and the accused have not been provided with the opportunity to cross-examining the witnesses against them. We shall examine this ground first. In order to appreciate this legal point we shall read rule 6(2) of the Efficiency and Discipline Rules, 1973 which state that "the enquiry officer or the Committee, as the case may be shall enquire into the charge and may examine' such oral or documentary evidence in support of the charge or in defence of the accused as may be considered necessary and accused shall be entitled to cross-examine the witness against him". Very obviously the cross-examination is then mandatory requirement in law.
8. We have seen the entire material of the enquiry report and we find only two pages i.e. Annexures I & II appended to the enquiry report. These are the statements of the accused Messrs Saeed Ahmed and Salimuddin. We do not find the statement of two important parties namely Dr. Munawar Qureshi R.M.O. General-I the complainant and Mr. Noor Muhammad who was the supplier on behalf of M/s Jamil Brothers who were awarded the contract to supply the material. We also do not find record of any cross-examination conducted in accordance with the rules 6(2). Very obviously this enquiry suffers from serious legal infirmity inasmuch as the right of defence of cross- examining the important parties i.e. Dr. Munawar Qureshi R.M.O. General-I and Mr. Noor Muhammad representative of Mr. Jamil Brothers Limited has been seriously prejudiced. It is our belief that enquiry committee could reach correct conclusion if a proper cross-examination of the witnesses was carried rout in presence of the accused. In view of above serious legal infirmity only the impugned order in respect of both the appellants Messrs Saeed Ahmad and Salimuddin could not be sustained.
9. It is a settled law that when the code is penal then charges must be well framed and the enquiry procedure strictly construed and followed. When the accused or to be inflicted major penalties the authority doing so should make absolutely sure that the charges so framed have been proved beyond any reasonable doubt in 'fact' and in 'law' both.
10. In view of what has been stated in paras 7 & 8 we observe that impugned orders suffer from serious legal 'lacunae' and 'infirmities' inasmuch as that the accused have not been afforded a reasonable opportunity of putting up their defence within the meaningof section 5(2) read with section 6(1) and (2) of the Sind Civil Servants (E&D) Rules of 1973. Having reached at this conclusion we allow the appeals on 'technical grounds' Impugned orders in respect of Messrs Saeed Ahmad and Salimuddin are accordingly set aside. Their cases are 'remanded back' to the Department with a direction that Authorised Officer may proceed from the stage where he may have committed the 'error' and complete the enquiry and take further action in strict accordance with the said rules and complete the procedure within three months of the issue of this order. The accused officials shall stay in suspension during this period until the competent authority decide otherwise.
A.A./1130/Sr.S.