1. ' MUNAWAR ALI KHAN (CHAIRMAN).--By this appeal the appellant Dr. Faiz Muhammad Shaikh has sought reversal of the two orders: first, passed by the Chief Secretary, Government of Sind dated 9th April, 1987, whereby he was removed from service and second, made by the Chief Minister, dated 29th March, 1988, by which his departmental appeal/review from the first mentioned order was rejected.
2. ' Briefly stated the facts of the case are that the appellant entered Government service on 1-11-1973 as Demonstrator (Grade-17) in Chandka Medical College, Larkana. Later, he was promoted as Assistant Professor in the same College. While he was working in that capacity the students of that College made agitation against alleged misbehaviour of some teachers with a girl student, Fahmida Baloch. As a result of the enquiry instituted to ascertain the causes of the agitation, the appellant was placed under suspension. Thereafter he was served with show-cause notice. As his reply to the show-cause notice was found unsatisfactory, major penalty of removal from service was imposed upon him. He preferred appeal review from the order of his removal but without any success. After exhausting the departmental remedy he came in the present appeal before this Tribunal.
3. ' We heard the arguments of the learned counsel for the appellant as well as of the learned Government counsel, Mr. Imdad Hussain Kazi. We also went through the relevant record carefully.
4. As provided in sub-rule (2) of rule 5 of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973 (hereinafter referred to as the said rules) discretion is vested in the "Authorised Officer" to decide whether in the light of facts of the case or interests of justice, an enquiry should be conducted through an Enquiry Officer or Enquiry Committee. For taking such decision the Authorised Officer will, of course, exercise his discretion in judicious manner and not arbitrarily. In the instant case, the Secretary, Health Department, who was the 'Authorised Officer' obviously decided that enquiry was not necessary and as such he chose the alternative course. That is to say that instead of ordering enquiry through Enquiry Officer or Enquiry Committee, he contented himself with serving a show- cause notice on the appellant. The learned counsel for the appellant vehemently argued that the Authorised Officer exercised the discretion vested in him arbitrarily and in utter disregard of the nature of the case. According to him since the appellant was conveyed merely a catalogue of allegations by the show-cause notice, which he had categorically denied, enquiry was necessary to prove the allegations. The learned counsel further argued that once it was decided not to hold enquiry, the appellant had to be informed of the grounds on which he was to be punished.
5. However, the show-cause notice served on him did not disclose any such grounds but rather only enumerated the allegations which in, absence of proof could not be the basis of the appellant's punishment.
6. ' The charges against the appellant are contained in para. 4 of the show-cause notice, which reads as under: "4. The details of his misconduct are as under:
(i) He allegedly attempted to obtain illicit contact with a female student named Fahmida Baloch;
(ii) It is also alleged that he demanded such illicit contact from the said girl in writing;
(iii) It is further alleged that he attempted to coerce the said female student in yielding to his illicit demand on threat of failing either yourself or through your colleagues."
7. ' The charges mentioned above were manifestly in the nature of factual allegations. In his reply to the show-cause notice the appellant vehemently denied the said allegations. The relevant portion of his reply reads as follows:- "As all the allegations brought against me do not contain even a grain of truth and my entire record of service at the institutions, where I have served for about thirteen years bears out that I had maintained my moral conduct at the desireable level and the crook behaviour of the complainant and the manner in which the whole affair has been conducted stands established."
8. ' Despite the appellant's denial of the allegation as reproduced above, nothing was done to substantiate the same. It is an admitted position that while serving the show-cause notice on the appellant, no other document was supplied to him. As such the show-cause notice had no support but it rather stood in isolation. As disclosed in the written statement filed on behalf of the official respondents, the show-cause notice was issued to the appellant, in consequence of the enquiry which was held in the wake of students' agitation against the alleged misbehavior of some teachers with a girl student, Fahmida Baloch. But neither the said enquiry nor any evidence, oral or documentary produced in course of that enquiry was made the basis of the impugned departmental proceedings. As a matter of fact nothing from what transpired in the said enquiry was brought to the notice of the appellant nor was he called upon by the show-cause notice served on him to explain any material or document produced therein.
9. In view of the factual position stated above, the material point for our consideration would be if it was justified to award major penalty to the appellant on mere allegations of fact which were categorically denied by him and in spite of his denial no step was taken to substantiate such allegations. Rule 3 of the said rules, which starts with caption "Grounds for penalty" clearly shows that penalty is awardable on the 'grounds' specified therein and not on mere allegations. This view finds further support from sub-rule (3)(a) of rule 5 of the said rules, which requires the Authorised Officer who has decided not to hold an inquiry, to inform the accused, by order in writing, of the action proposed to be taken in regard to him and the 'grounds' of the action. Thus what we call show-cause notice served on the accused officer was in legal terminology an order in writing by which the accused officer was to be informed not only about the action proposed to be taken against him but also about the 'grounds' of such action. On the the hand if enquiry was decided to be held, then the Authorized Officer had to frame charge and communicate the same to the accused officer together with statement of allegations explaining the charge etc. Vide sub-rule (1)
(a) of rule 6 of the said rules. This brings out the clear difference between the two situations. In case of holding enquiry statement of allegations was to be served on the accused official because of the allegations are proved in course of the enquiry, they would provide `grounds' for inflicting punishment on the said official. On the other hand if no enquiry was held the accused official was to be informed of the 'grounds' on which proposed punishment was to be based. From this appraisal, it appears to us that 'grounds' and 'allegations' are two different terms and are to be distinguished from each other. They cannot be regarded as synonyms of each other.
10. ' If the show-cause notice issued in the present case is scrutinized in the light of above findings, it does not fulfil the legal requirements inasmuch as it did not convey to the appellant the 'grounds' on which penalty proposed to be awarded to him was to be based but it rather contained only allegations against him. Consequently the show-cause notice not being in conformity with the legal requirements was invalid and all actions and orders based on such notice were void. In support of the above view reliance was placed by the learned counsel for the appellant on the precedent case reported as Lal Muhammad v. Government of Sind 1980 SCMR 850 wherein it was held: "The point is self-evident, and precisely because the Authorised Officer dispensed with an enquiry, he should have taken pains to give full particulars of the charges against the appellants. Instead he informed them of the allegations against them without giving any grounds for those allegations.
11. As the show-cause notices were thus in flagrant violation of the mandatory provisions of sub-rule (3), they were illegal and on this ground alone the proceedings instituted against the appellants have to be set aside."
12. ' Apart from above it would be significant to refer to sub-rule (4) of rule 5 of the said rules. It reads as under: "(4) On receipt of the report of the Inquiry Officer or Inquiry Committee or where no such Officer or Committee is appointed, on receipt of the explanation of the accused, if any, the Authrised Officer shall determine whether the charge has been proved and--
(a) if it is proposed to impose a minor penalty, he shall pass order accordingly;
(b) if it is proposed to impose a major penalty he shall forward the case to the authority along with the charge and statement of allegations served on the accused, the explanation of the accused, the findings of the Inquiry Officer or Inquiry Committee, if appointed, and his own recommendations regarding the penalty to be imposed and the Authority shall pass such orders as it may deem proper."
13. The above sub-rule makes it abundantly clear that on receipt of the explanation of the accused in the case when enquiry was not held, the next step that Authorised Officer had to take was to determine if the charge levelled against the accused was proved. It was after such determination that the stage of awarding punishment to the accused would follow. In other words the punishment could be awarded only when, in the opinion of the Authorised Officer, the charge against the accused officer was proved. Thus, punishment being dependent upon proof of the charge, we have to make sure if the allegations contained in the show-cause notice served on the appellant were proved. As pointed out above no document or any other material was produced in support of the allegations against the appellant who has made categorical denial of the same. As such the allegations cannot be held to have been proved against the appellant. In this connection it would be useful to refer to the views of the Chief Secretary who is appellant's appointing authority, as expressed by him in the "Summary for Chief Minister" dated 31-1-1988 which was floated on the appellant's departmental appeal/review petition. His views are contained in paras. 2 and 3 of the Summary which read as under: "2. Dr. Faiz Muhammad Shaikh has appealed (F/B) against the order of ' removal from service (F/C). I have also gone through the three-member Committee's enquiry on the basis of which disciplinary action was initiated against Dr. Shaikh. It is seen that the Committee did not examine the most material witness in the whole case, viz. Fahmida Baloch. Moreover, the Committee also did not get the letter, alleged to have been written by Dr. Faiz, examined by any Handwriting Expert to determine conclusively whether it was in fact written by him. This was essential in view of Dr. Shaikh's denial as well as the statement of Professor Ameen Choudhry.
14. Similarly, the reliability of the tape-recorded statements of Dr. Faiz and Dr. Masoody are also doubtful as these statements, on the face of it, were taken by students under duress and threat to their lives. It is a matter of record that both these doctors were kidnapped from Medical Superintendent's room at gun-point by a group of students led by Imdad Ghangro who recorded the alleged statements.
3. Given the above facts and the circumstances of the case, it is rather surprising that the three member Committee still came up with its unfavorable recommendations against the appellant.
15. The academic record of Fahmida Baloch has all along been extremely poor and she was admittedly a black-mailer. Without carefully examining her and in the absence of conclusive proof regarding the origin of the letter purported to have been written by Dr. Faiz Muhammad Shaikh, it would be extremely dangerous to hold him guilty of the charge, not to speak of the punishment awarded to him."
16. ' The views expressed by the Chief Secretary are un-exceptionable. We would like to add that the enquiry held by three member Committee to which the learned Chief Secretary has referred, would not even otherwise lend any material support to the case of the Department for the simple reason that it preceded rather than followed the service of show-cause notice on the appellant. It was in the nature of preliminary enquiry. Since this case was initiated with service of show-cause notice on the appellant, the entire material collected in course of the preliminary enquiry should have been supplied to the appellant simultaneously with the service of show-cause notice if the Department wished to rely on such material in this case. There is not even a remote indication in the show-cause notice about the preliminary enquiry what to say about the material collected in that enquiry.
17. As a result of above discussion we have come to the conclusion that original order as well as the appellate order impugned in this appeal are not sustainable. Accordingly appeal is accepted with no orders as to costs and the said orders are set aside. However, in view of serious nature of the allegations made against the appellant, it would be open to the Departmental Authorities to proceed against the appellant afresh strictly in accordance with the said rules