' CH. HASAN NAWAZ (MEMBER).--While being in service with the respondents as U.D.C. On 9-5-1977, the appellant was served with the following charge-sheet:
(a) On 20-1-1977 while posted at Lahore Railway Station, he presented before the Assistant Collector, Lahore-II an application dated 1-1-1977 seeking retirement from service w,e,f, 17-1-1977;
(b) He absconded from duty with effect from 17-1-1977; and
(c) While still in service, he contested election to the National Assembly of Pakistan from Lahore constituency in violation of sub-rules (3) and (5) of Rule 24 of Government Servants (Conduct)
Rules, 1964.
2. In consequence of disciplinary proceedings, he was dismissed from service on 25-4-1978 and after the rejection of his departmental appeal on 17-8-1978, he came to the Tribunal with an appeal under section 4 of the Service Tribunals Act, 1973, where the order of dismissal was set aside on 25- 8-1980 in acceptance of the appeal with all consequential benefits including consideration of his case for promotion, if any, under the Rules.
3. In compliance, the appellant was reinstated by order dated 6-10-1980 (Annex. B) w,e,f, 25-4-1978, the date of his dismissal. The arrears of his emoluments were also paid.
4. On 10-12-1980, he was served with another charge-sheet (Annex. 'C') containing the same charges and was also placed under suspension w,e,f, that date. He submitted his explanation in writing (Annex. 'H') on 24-12-1980, which was not found satisfactory and Mr. Mir Fawad, Assistant Collector was appointed as an Inquiry Officer to conduct an enquiry into the allegations, which he could not do because of his promotion. Mr. Muhammad Nawaz, Assistant Collector, Gujranwala was then appointed as an Enquiry Officer who submitted a report on 15-7-1982, which resulted in the issuance of show-cause notice dated 14-12-1980. The appellant's explanation in writing dated 19-12-1982 is Annex.T. On discovery of some defect in the proceedings of the Enquiry Officer, Mr. Muhammad Ashraf Mahmud, Superintendent, Central Excise and Land Customs was appointed as Enquiry Officer by order dated 22-3-1982 (Annex. T) with the direction to expedite the enquiry and submit a report within one month.
5. The Enquiry Officer submitted a report on 7-7-1983 (Annex. 'K'), where it was concluded that the allegations against the appellant have not been established and that he should be reinstated. It appears from the record that after the report had been submitted, the Collector, Central Excise and Land Customs, Lahore, in consequence of an enquiry made by him, received letter dated 18-7-1983 (Annex. `L') which purports to have been issued by the Deputy Election Commissioner. This letter certified that (a) one Mirza Muhammad Hanif son of Muhammad Wazir, resident of House No, 6, Nawab Street No, 6, Chohan Road, Krishan Nagar, Lahore filed his nomination papers for election to the National Assembly of Pakistan from Constituency No, NA-85, Lahore held in March, 1977 with the Retiring Officer concerned on 19-1-1977; (b) that on scrutiny of nomination papers on 21-1-1977 it was found that Mr. Muhammad Hanif was a validly nominated candidate; and (c) that he did contest the election and secured 414 votes. The Enquiry Officer was asked by the authorized officer to reconsider his report in the light of this letter, which resulted in the submission of supplementary enquiry report dated 22nd September, 1983 (Annex. 'M') where it was found that the appellant had taken part in the election of March, 1977 and was thus guilty of offending against sub-rules (3) and
(5) of Rules 24 of the Government Servants (Conduct) Rules, 1964.
6. The appellant filed a declaratory suit challenging the validity of letter dated 18-7-1983. It was dismissed by the Civil Court on 10-2-1984 for want of jurisdiction. His appeal against the order of suspension filed on 22-5-1982 under section 4 of the Act was dismissed by the Tribunal on 11-7- 1984 as premature (Annex.'R').
7. After the submission of supplementary enquiry report dated 22-9-1983, the appellant was served with final show-cause notice dated 10-10-1983 (Annex.'S'). After consideration of his explanation (Annex.(11'), the appellant was dismissed from service w,e,f, 10-12-1980 by order dated 5-8-1984 (Annex.`13') conveyed to him on 6-8-1984. His departmental appeal (Annex.`V) was rejected by respondent No, 1 and the order of rejection was conveyed by respondent No, 2 through letter dated 16-3-1985 (Annex. A).
8. With these facts in the background, the appellant has challenged the validity of orders dated 22- 3-1983, 22-9-1983, 6-8-1984 and 16-3-1985 passed by the respondents in the present appeal under section 4 of the Service Tribunals Act, 1973.
9. The following main grounds have been relied upon in support of the appeal:-
(a) The appellant has been tried twice for the same charges which could not have been legally feasible.
(b) After he had been exonerated of the charges by the Enquiry Officer in his report dated 7-7-1983, he could not have been found guilty in the supplementary enquiry report. The respondents' failure to supply him with copies of the statements of witnesses and other material documents prejudiced his case and he could not submit a plausible explanation of his conduct.
(c) The appellant was not given any opportunity to cross-examine the officials of the Election Commission in respect of letter dated 18-7-1983, which vitiated the entire proceedings.
(d) On facts, the conclusions arrived at by the Enquiry Officer were not warranted by oral and documentary evidence on record.
10. In defense it was pleased that the initiation of fresh proceedings against the appellant was in accordance with law and that he was dismissed from service after the observance of all the necessary formalities. Although he was proceeded afresh on the basis of same allegations, there was nothing legally wrong about it and the respondents were within their authority to pass an order of dismissal after due proceedings. The submission of supplementary enquiry report was also in accordance with law and the Enquiry Officer was justified in coming to a different conclusion on the basis of Election Commission's letter dated 18-7-1983, which provided him with a basis for finding that the appellant had participated in the election. It was further pleaded that copies of enquiry reports dated 7-7-1983 and 22-9-1983 were provided to the appellant alongwith the Election Commission's letter to enable him to explain his conduct. He was also heard in person on 17-6-1984 before the passage of impugned order and that formalities enjoined by the rules were observed.
11. Apart from the Election Commission's letter dated 18-7-1983 (Annex. L) which provided the Enquiry Office/ with a basis for a finding in the supplementary report to the effect that the appellant did take part in March 1977 Election in violation of the conduct rules, we have got very sound and substantial documentary proof of the fact that he participated in the election to make himself liable to disciplinary action under the Rules.
12. The most important piece of evidence becomes available from affidavit dated 5-9-1983 (Annex.
N) filed by the appellant before the Enquiry Officer, about which he has pleaded in paragraph 8 of his appeal that it was procured from him by compulsion in an "illegal manner". Before dealing with the effect of this document, it may be mentioned that there is nothing on the record to indicate that the appellant was forced to file the affidavit. Other circumstances appearing from the record rather go to show that the averments made in the affidavit were the result of appellant's volition and that he filed it before the Enquiry Officer, of his own accord and free will. To say the least, the deposition in this document is in line with the appellant's case set up in various other documents.
13. The affidavit contains the following material depositions:
(a) The nomination of appellant's name in the election was without his consent on the proposal of some respectable of the locality. He did not appear before the Returning Officer who approved his nomination by ignoring the prescribed rules.
(b) He tried, by appearing in person before the Returning Officer and submission of notices, to get his nomination cancelled.
(c) He also requested the head of his department to achieve this purpose and he was kind enough to send a letter to the. Election Commission for cancellation of his candidature.
(d) Since the whole election throughout Pakistan was declared to be null and void, the fact of appellant having contested was immaterial and he could not be taken to have offended against the Conduct Rules.
(e)It also appears from the statements of some "eye-witnesses" that he severed his connection from the election.
14. The merits of averments made in the affidavit apart, one thing is absolutely clear: It is that the appellant did take part in the March, 1977 Election; which is moreso if seen in the background of the fact that during his posting at Lahore Railway Station on 20-1-1977 he submitted application dated 1-1-1977 seeking retirement from service w,e,f, 17-1-1977. This application provides us with circumstantial evidence to show that he sought his retirement from service to be able to participate in the election, even though it might have been the result of ignorance of the rules.
15. Although in the affidavit, the appellant seems to have made an attempt to cause an impression that he himself did not file his nomination papers and it was done by certain respectable of the locality without his approval, the fact remains that there is no doubt about the identity of Mirza Muhammad Hanif who took part in the election and with whom the Election Commission's letter dated 18-7-1983 deals. This aspect of the matter has become material in view of the contention raised at the bar during the course of arguments and the appellant's pleadings that he was not one who participated in the election and that Mirza Muhammad Hanif of letter dated 18-7-1983 was a person other than the appellant. The affidavit, if seen in the context of the aforementioned circumstances, is a valuable piece of evidence to show that the appellant has been denying the fact of his participation in election to save himself from the consequences of disciplinary proceedings; especially when its execution is an admitted fact.
16. Letters dated 18-1-1977 and 7-2-1977 (Annexs. 0 & P) addressed to the Election Commission and the Collector, Central Excise and Land Customs, Lahore produce the same results. It was averred by the appellant that his nomination papers had been filed without his consent by certain influential persons of the locality. As for the merits of this contention, they have to be determined with reference to certain other evidence available from the record, but these letters do establish that it was only the appellant whose nomination papers had been filed and that he was one who took part in the election as a candidate for the National Assembly. As regards the weight of the contention, namely that his nomination papers had been filed by certain influential persons of the locality without his willingness due to enmity, they have to be determined in the light of various other circumstances appearing from documentary evidence on the record. They are clearly suggestive of the fact that the appellant was a validly nominated candidate and that he got 414 votes in the election.
17. Apart from the evidence borne out by the affidavit and the aforementioned letter, even the first report (Annex. K) Is indicative of the fact that the appellant sought voluntary retirement from 17-1- 1977 and that on 7-2-1977 he submitted an application to the Collector stating that he intended to contest election for membership of the National Assembly from constituency No, 5, Lahore. A closer application to this report would show that the Enquiry Officer seems to have dealt with the matter in a perfunctory manner and that his finding did not have the support of the material before him. It appears that certain bills and posters were produced before him to show that the appellant was in fact a candidate in the election. He expressed the opinion that "neither the prosecution has been able to prove the allegation nor has the defence been successful in producing some rebuttal of the aforementioned charge. "I feel no hesitation in saying that these observations are evasive and that the report does not give any substantial reason for disregarding the evidence produced during the course of enquiry. It stands established, beyond all reasonable doubt that Mirza Muhammad Hanif who participated in March 1977 election as a candidate for National Assembly seat from Lahore, was no other than the appellant and that this was in clear violation of the Conduct Rules of 1964.
18. Before leave of the matter is taken, a few words about the grounds in support of the appellant's prayer in appeal. There is substance in the argument that the respondents were within their right to proceed against the appellant afresh after the Tribunal's judgment dated 25-8-1980, to remove the lacunas in earlier disciplinary proceedings resulting in the appellant's dismissal. There was nothing legally wrong with fresh enquiry on the same allegations and it can safely be held that the department was justified in passing the impugned order after observance of necessary formalities.
Further, there was nothing illegal about the submission of a supplementary report after the availability of Election Commission's letter dated 18-7-1983 in support of the allegation against the appellant. True, that he did not have the opportunity to cross-examine the officials of the Election Commission, but this circumstance has not resulted in any miscarriage of justice, particularly in the presence of the affidavit filed by him. It is difficult to agree that the Enquiry Officer's proceedings were vitiated merely because reliance was placed on the election commission's letter in support of finding adverse to the appellant.
19. For these reasons, the appeal is dismissed as being without any force. However, the costs will not follow the event.