' SYED ALLY MADAD SHAH (CHAIRMAN).--Both the appeals are of identical nature. They have been heard simultaneously. They arc disposed of by this one judgment.
2. Both the appellants Mr.Asgharuddin and Mr.Muhammad Rafiq Qureshi were Assistant Engineers in the Pakistan Telegraph and Telephone Department (hereinafter referred to as T&T Department).
Both of them were proceeded against under the Government Servants (Efficiency and Discipline)
Rules, 1973 (hereinafter mentioned as the E&D Rules), on the charges of having incurred huge expenditure on maintenance of assets within their respective sub-divisions during first six months of the financial year 1981-82 by violating rules and regulations and administrative instructions on financial discipline, and were ultimately awarded punishment on the basis of inquiry reports against them. The appellant MrAsgharuddin was awarded punishment of his reduction to the lowest stage in his time scale with immediate effect vide Notification, dated 30th August, 1984. The appellant Mr.Muhammad Rafiq Qureshi was awarded punishment of his reduction to the lower post of Engineering Supervisor with immediate effect vide Notification, dated 30th August, 1984.
They preferred respective appeals. The appellant MrAsgharuddin filed Appeal No,20(R) of 1985 on 13-1-1985 after failing to get relief in departmental appeal. The appellant Mr.Muhammad Rafiq Qureshi likewise filed Appeal No, 30(R) of 1985 on 22-1-1985.
3. The appellant MrAsgharuddin was charge-sheeted on 20th March, 1983; while the appellant Mr. Muhammad Rafiq Qureshi was charge-sheeted on 13-4-1983. Both of them submitted their explanations to the charge-sheets on different dates. Inquiry into the charges against them was conducted by an Inquiry Committee consisting of Mr.Nur Hussain Malik, D.E. Phones, City, Rawalpindi, Mr.Gul Ahmed, D.E.Phones (Inspection), office of General Manager, ITR, Islamabad, and Mr.Abdul Fatir Siddiqi, Senior Accounts Officer, Telephone Revenue, Rawalpindi. The Inquiry Committee submitted separate reports on the charges against them on 15-8-1983. The Inquiry Committee held both the appellants guilty of "corruption and misconduct". Consequent to the report, the appellant MrAsgharuddin was imposed penalty of reduction to the lowest stage in his time scale vide Notification, dated 30th August, 1984; while the appellant Mr.Muhammad Rafiq Qureshi was imposed penalty of his reduction to lower post of Engineering Supervisor vide Notification, dated 30th August, 1984. Both of them preferred departmental appeals. The orders of the punishments awarded on them were set aside by the appellate authority with the directions that fresh proceedings be taken against them as they were not served final show-cause notice and were not supplied copies of the inquiry report. Accordingly, fresh proceedings were taken from the stage the lacuna in the inquiry proceedings had crept in and the appellants were served final separate show cause notice alongwith a copy of the inquiry report and their explanations were called for and fresh orders of the same pattern (impugned in these appeals) were passed on the dates shown above. Their departmental appeals filed second time did not bear fruit and they preferred these appeals.
4. The learned counsel for the appellants has advanced several grounds that the inquiry proceedings were not conducted in accordance with the rules inasmuch as that no evidence was recorded in presence of the appellants, and they were subjected to ' interrogation/cross- examination in violation of the Constitutional protection and they were denied legal assistance and they were put on retrial without lawful authority and were ultimately awarded discriminatory punishments and that too for indefinite period in violation of FR-29.
5. The respondents have resisted the appeals, contending that the appellants were proceeded against in accordance with the relevant rules and they were afforded opportunity of hearing but they could not he allowed to be represented by an Advocate in view of specific bar under law. The learned counsel appearing on their behalf has reiterated the same grounds in opposition and also urged that no illegality was committed and rather natural justice was done to the appellants in setting aside the orders of punishments which were passed without issuing them final show-cause notice and supplying them copies of the inquiry reports, and they were afforded full opportunity of putting up defence.
6. The departmental proceedings against the appellants were initiated on charge-sheets served upon them. They put up their defence. Regular inquiry was conducted by an Inquiry Committee consisting of three senior officers of the department. Consequent to the findings of the Inquiry Committee that the appellants were guilty of the charges constituting misconduct and corruption orders for imposing punishments on them were made. They preferred departmental appeals. The appellate authority in the department noticed that the appellants were not served final show- cause notice, and copies of the inquiry reports were not supplied to them and set aside the orders and directed that the deficiencies having occurred in the proceedings should be removed and fresh orders be passed. Accordingly, the appellants were served final show-cause notices and they were provided copies of respective inquiry reports. Fresh orders were passed thereafter, although they were of the same nature as passed earlier. Copies of the inquiry reports are on the record. It appears from the inquiry reports that the Inquiry Committee had perused the relevant record and noticed violation of rules and regulations in spending lacs of rupees and they called the appellants and afforded the opportunity of explaining the irregularities and illegalities pointed out to them in the form of a questionnaire and their written reply was obtained. There is nothing illegal in the proceedings till that stage of the proceedings. It is, of course, mentioned in the inquiry report that the appellants were interrogated. Of course, that step in the proceedings was not permitted by law.
The allegations against the appellants were such that they did not necessarily require recording of oral evidence as the Inquiry Committee could detect illegalities/irregularities by examining the record and then furnished opportunity to the appellants to explain them. No doubt, objection has also been taken to the remand of the cases for removing deficiency in the proceedings of issuing show cause notice and furnishing copies of the inquiry reports to the appellants, and the learned counsel for the appellants has made reference to the Civil Servants (Appeal) Rules, 1977 (hereinafter referred to as the Appeal Rules), and urged that the rules do not confer any power on the appellate authority to remand a case. He has made pertinent reference to Rules 3 and 6 of the Appeal Rules. Rule 3 confers right on a civil servant of preferring an appeal to the appellate authority from an order passed by an authority or an authorized officer imposing upon him any penalty. Under sub-rule (1) of Rule 6 of the Appeal Rules, the appellate authority while considering an appeal filed under Rule 3 can confirm, set aside or modify the previous order. The learned counsel for the appellant has advanced the argument that the appellate authority hearing an appeal under the provisions of Rule 3 of the Appeal Rules does not have power to order retrial of the departmental proceedings. Of course, there is no explicit provision in sub-rule (1) of Rule 6 of the Appeal Rules that the appellate authority can make such an order but the appellate authority does have power to set aside an order and, while exercising that power, the appellate authority has implied power of passing an appropriate consequential order. The learned counsel also made reference to the instructions on the competency of punishing authority to retry cases or to revise the punishment already imposed, published at page 341 of the ESTACODE 1983 edition. In fact, these instructions dislodge the argument advanced by the learned counsel. It is provided in the instructions/orders that an original punishing authority cannot revise its own order but an appellate authority can order retrial of a case on the ground of flaw in procedure, only on receipt of an appeal from the appellant. In the instant case, the order for remand of the case was passed by the appellate authority and it was in consonance with these instructions.
7. As regards the objection of refusal of allowing legal assistance, the learned counsel for the appellant has placed reliance on the cases of Aslam Ali Shah v. Collector of Central Excise & Land Customs 1983 PLC (C.S.) 498; Muhammad Saeed Ahmed Khan v. Secretary to Government of Punjab, Housing & Planning Department PLD 1983 Lah.206; and Collector of Central Excise and Land Customs v. Aslam Ali Shah 1982 SCMR 519. In the Lahore High Court cases relied upon by the learned counsel for the appellant, it was, no doubt, held that refusal of availing legal assistance in departmental proceedings was violate of the provisions of Article 4 of the Constitution and against the spirit of section 22 of the Legal Practitioners and Bar Councils Act. In appeal against the decision of the High Court in Aslam Ali Shah's case, the Supreme Court held that the High Court did not have jurisdiction to have entertained the question raised before it as that question lay in the exclusive jurisdiction of the Tribunal. The decision of the Supreme Court which is reported in PLD 1985 SC 82 would extend also to Muhammad Saeed Ahmed Khan's case. On merits, with utmost regard for the view of their Lordships in the Lahore High Court in those cases, I respectfully hold a different view that Article 4 of the Constitution enjoins that no action detrimental to the life, liberty, body, reputation or property of any person shall be taken, except in accordance with law and in the instant case, the appellants were proceeded against in accordance with law viz. The E & D Rules, made under the provisions of Civil Servants Act, 1973, which lay down that no party to the proceedings under these Rules shall be represented by an Advocate; and, therefore, in my humble opinion, there was no violation of Article 4 of the Constitution. I am also of the view that. Provisions of section 22 of the Legal Practitioners and Bar Councils Act also were not infringed as it provides that an Advocate shall be entitled to appear before any Court or Tribunal as a matter of right subject to the provisions of the said Act or any other law for the time being in force. Since there is a specific bar under Rule 10-A of the E & D Rules to the appearance of an Advocate in the proceedings on behalf of any party, the ground put forth that the appellants were denied right of representation by a counsel cannot be sustained.
7-A. The grievance of the appellants that they were subjected to discrimination in awarding of the punishment has hardly any substance. The I I) quantum of punishment is generally determined on the magnitude/gravity of the charges. The learned counsel for the appellants has made reference to the orders impugned in the Appeals 196(R) of83, 197(R)/83 and 254 (R)/83, but there does not seem any element of discrimination in the case of the appellants.
8. The learned counsel for the appellants has assailed the findings of the Inquiry Committee on the vouchers in respect of the payments made to work-charged establishment and made reference to the observations of this Tribunal in Appeal No, 429(R)/84, decided on 20-4-1984. Of course, the observations made in respect of vouchers in that appeal would extend to the observations of the Inquiry Committee on the suspected vouchers involved in these appeals as well and the appellants may not be held guilty of corruption on the basis of those vouchers, but there was evidence against them that they had violated rules and orders while incurring huge expenditure, and it appears that it was for that reason that they were imposed lesser punishment in comparison to the punishment awarded on the appellant in Appeal No, 429(R)/84 and the decision in that appeal was based on the facts concerning embezzlement of funds attributed to the appellant therein.
9. The objection to the nature of the punishment that it did not specify the period for which it was operative has, of course, substance. Reliance has been placed on the provisions of FR-29 which provides that if a Government servant is, on account of misconduct or inefficiency, reduced to a lower grade or post or to a lower stage in his time scale, the authority ordering such reduction shall state the period for which it shall be effective and whether on restoration it shall operate to postpone future increments, and if so, to what extent. However, this lacuna did not call for setting aside of the order but lacuna can be set at rest by specifying the period by the appellate authority.
10. For the reasons recorded above, the appeals are dismissed with the modification of the impugned order to the extent that reduction to the lowest stage in the time scale of the.Appellant Mr. Asgharuddin shall remain operative for a period of three years from the date of the order; and reduction of the appellant Mr. Muhammad Rafiq Qureshi to the lower post of Engineering Supervisor also will remain operative for a period of three years from the date of the order.