' D.R. A.Q. QAZI (MEMBER).--This order will govern and dispose of Appeal No 23 of 1987 by which Mr. Fasahat Ali Khan appellant has sought the redress against the order of compulsory retirement from service.
2. Briefly stating the facts as impleaded in the appeal, arc that the appellant was working as. a Lecturer at Liaquat Government College, Kala Board Malir. It is his plea that he had maintained a clean record of service and has had no punishment major or minor to his credit except the one herein appealed against at this Tribunal.
3. While he was working at the College, he was served with a charge-sheet which leveled three allegations of unauthoriscdly collecting the tuition fee from six students not legally registered in the college, managing to use the counterfeit stamp of the Principal and forging the signature of the Principal, and assisting illegally admitted students to appear at the Board examination.
4. He was supplied with a copy of the charge-sheet dated 21st November, 1985 with a statement of allegations which he replied on 9-12-1985 denying all the a foresaid three allegations Professor Mr. Muhammad Rafiq was appointed as an Enquiry Officer and conducted an inquiry into the said three allegations and found him guilty of charges. On the basis of the enquiry report, the copy of which was supplied to Mr. Fasahat Ali Khan, he was issued a final show-cause notice on 23rd June, 1986 in which he was called upon to show-cause as to why a major penalty be not imposed upon him. He replied to the show-cause notice on 30th July, 1986. He was also heard in person by the Authorised Officer i,e, the Education Secretary to Government of Sind. The Authorised Officer, Education Secretary after considering the reply of Mr. Fasahat Ali Khan and giving him a personal hearing forwarded his recommendations to the Minister for Education Sind. The Education Minister who was the competent Authority decided to impose a major penalty of compulsory retirement on him. Mr. Fasahat All Khan appealed to the Chief Minister, Sind and after waiting for the statutory period has now approached this Tribunal for relief.
5. In the written statement supplied on behalf of the Government, it is stated that Mr. Fasahat All Khan who was the Lecturer in Chemistry was instrumental in obtaining college fees from six students who were not the bona fide students of the College. He is charged to be responsible for affixing forged signature of the Principal and stamp of the college. It is further averred in the reply by the respondents that the enquiry conducted against him was through an Enquiry Officer and in accordance with the E & D Rules, 1973. It is further said that he had given a written reply and had cross-examined the evidence. It is further said on behalf of the Government that he was given a personal hearing by the Secretary Education, Sind after which he was issued a second show-cause notice to which he replied. His reply was considered by the competent authority and he was compulsorily retired.
6. We have gone through the case file and the complete enquiry report which extends to page from 201 to 245. Before we get into the merits of the case we would like to dispose of one legal objection raised by the learned counsel for the appellant. In order to understand this legal objection we should know the background which relates to this objection. Prof. Muhammad Nasir, Principal of Jamia Malia Government College, Malir who was appointed as an Enquiry Officer in this case, had prepared a questionnaire comprising of 20 questions which had been given in the process of enquiry, to some 7 students who appeared as witnesses. As such their statements were in the form of answers to these questions. All the 7 students recorded their statements on oath and submitted the reply to Prof. Muhammad Nasir. In the meantime Prof. Muhammad Nasir was transferred to Turbat and the enquiry was taken up by Prof. Muhammad Rafiq who was appointed as the Enquiry Officer and who proceeded with the enquiry from this stage.
7. The learned counsel for the appellant Mr. Manzoor An Khan has seriously challenged this procedure. He has vehemently argued that such a questionnaire could not be issued to the students who were the witnesses, that such a procedure is in violation of rule 6 as envisaged in the E & D Rules, 1973. Let us read this procedure and sec if anything has been violated which has materially prejudiced the appellant. Sub-rule (2) of the rule 6 of the enquiry procedure of the rules is reproduced as under:- "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 any defense of the accused as may be considered necessary and the accused shall be entitled to cross-examine the witnesses against him."
' It is the contention of the learned counsel for the appellant that as required by above rule the statement of any witness was to he recorded orally and therefore such questionnaire is violate of the rule 6 as given above. We have given our best thought to his contention and we find that it has no force. The statements of the witnesses which were no doubt in the form of answers to the questionnaire were recorded on oath and the same statements were given to the appellant for thorough examination and the appellant was called to cross-examine the witnesses on the statements so recorded. We are fully satisfied that once the appellant had seen the incriminating material which was alleged against him and that he had conducted the cross-examination of witness/witnesses in question the procedure was substantially complied with and no material prejudice was caused to the appellant.
' At this stage we may refer to the authorities that the learned counsel, Mr. Manzoor Ali Khan has relied upon. There are detailed as under:
(1) Miss Saeeda Tasneem Ara v. West Pakistan PLD 1967 Lah.
112.
(2) Maj. Muhammad Nawaz v. Government of Pakistan PLD 1970 Lah.
811.
(3) Lal Muhammad v. Government of Sind 1980 SCMR 850.
(4) Ajmal Shah v. Government of N.-W.F.P. PLD 1982 Pesh.
165.
(5) Maqsood Ahmed Shaikh v. Islamic Republic of Pakistan 1987 SCMR 1562.
' We have gone through the above cited authorities. We find that none of these authorities lays down a law that the recording of statement in form of questions and answers in any way contravenes the rule 6 of the Efficiency and Discipline Rules of 1973. All these cases are well distinguished and in respect of facts they are entirely different. In short none of these authorities is on all fours with the facts and law of this particular case and hence does not apply.
8. Now we come to the facts of the case. We have gone through the entire enquiry report and find that in this enquiry seven witnesses were summoned who submitted the answers to the questionnaire circulated to them. The questions are in English and in inquiry report the answers which are in Urdu have been duly and faithfully translated in English. It would be very appropriate at this stage to refer to the statement of allegations which reads as under:- "STATEMENT OF ALLEGATIONS" The following charges are leveled against you:
(i) You unauthorized collected tuition fee from the following six students (Male and Female) assuring them that they were students of Liaquat Government College, Karachi although the students in question were not bona fide students of the said college.
(1) Miss Robina Arifa daughter of Abdul Rehman XI Arts.
(2) Miss Samina Bano daughter of Muhammad Tajummul Hussain XI Arts.
(3) Miss Asma Rehman daughter of Zaka-ur-Rehman XI Arts.
(4) Miss Zakia Naz daughter of Badrul Hussain XI Arts.
(5) Miss Tauqeer Fatima daughter of Shabbir Ahmed XII Sc.
(6) Mr. Shamshad Hussain son of Amjad Hussain XII Sc.
(ii) You somehow managed to get stamped Principal's stamp and affixed forged signature of the Principal of Liaquat Government College, Karachi on the forms of the fake students and got them deposited in the office of the Board of Intermediate Education, Karachi directly.
(iii) The Board had sent the original Admit Cards to the college which were not collected by the students but you assisted them in obtaining duplicate Admit Cards directly from the Board by forwarding their application with forged signature and Seal of the Principal."
' We find from inquiry report that only Samina Bano daughter of Muhammad Tajammul Hussain whose name has been included in the above statement of allegations as a witness against the accused has appeared before the committee for cross-examination by the accused officer. Rest of the witnesses namely (1) Miss Touqeer Fatima, (2) Mr. Shamshad Hussain, (3) Miss Robina Arifa, (4)
Miss Asma Rehman, (5) Miss Zakia Naz whose names appear in the statement of allegations with her did not appear before the Enquiry Committee or were not cross examined. The names of four students namely Mr. Muhammad Jameel, Miss Qamar Sultana, Mr. Badruddin and Mr. Sarfraz Khan who were examined as witnesses in the enquiry are however not included in the charge-sheet or statement of allegations. It is very clear from the report that Mr. Fasahat Ali Khan was asked to attend the office on 11-3-1988 and to record his statement, he went through these statements of all the witnesses and incriminating material was provided to him. The accused officer Mr. Fasahat Ali Khan requested for the cross-examination of all the witnesses who had recorded their statements under rules 6(2) of the E & D Rules. Only two witnesses appeared for cross-examination namely Miss Qamar Sultana and Miss Samina Bano. The name of Miss Samina Bano appears in statement of allegations whereas the name of Miss Sultana does not appear and as such in all fairness we will confine ourselves only to the statement of Miss Samina Bano. Her testimony is the only safe basis to judge if the allegations leveled against the appellant are proved or not. Since she is the solitary witness, her examination is indeed very crucial. As we go through the questionnaire supplied to Samina Bano, we descend to questions Nos. 11 and 12 and answers thereto, which are too significant. They are as under: "Q.
11. Did you fill your examination form and submit it on the counter; ' if not why?
' A. I had submitted the examination form and fees to the clerk (Mr. Ahfazur-Rahim).
' Q.12. Who received your examination form and fees?
' A. The clerk received the fees."
' We do not find the statement of the Clerk Mr. Ahfazur Rahim, on the record, as he was not examined in the enquiry. Since Samina Bano is the only major witness whose evidence would prove or disprove the allegations against the appellant, it was necessary to examine Mr. Ahfaz-ur-Rahim, to assess the merits of Samina Bano's statement. Thus a vacuum has been created.
' It is at this stage that we stop and pause for a moment. We ask ourselves a question why the remaining five students did not turn up and record their statements and if some of them did record why they did not turn up to appear for cross-examination? We have thoroughly probed but we do not find a satisfactory answer to this question in context of this case.
Be it as may, the only evidence left with us is that of Miss Samina Bano and her evidence in absence of the statement of clerk Mr. Ahfaz-ur-Rahim now becomes a very weak evidence. It is this weak evidence that compels us to give the benefit of doubt to the accused officer. We feel no hesitation to remark that there are some shadows left hanging on the honesty and integrity of the accused officer. We regret that we find no way as how to remove those in the mist of the doubts.
' It is with this benefit of doubt in mind that we accept the appeal and set aside the order of compulsory retirement of the appellant. However, we leave it open to the Department to hold a fresh enquiry against the appellant under the Efficiency and Discipline Rules, 1973 if the evidence necessary to prove the allegations hereinabove is available to them. Since the appellant has been given benefit of doubt, we direct that the period between the date of impugned order till the date of resumption of his duties shall be treated as the extraordinary leave without pay.