' SARFRAZ HASAN (MEMBER).--Syed Kamran Ali son of Syed Nasir Ali Gardezi resident of Katra Syed Wali Shah, Inside Akbari Gate, Lahore has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 in which he has impleaded Secretary, Government of the Punjab, Food Department, Director Food, Punjab and Deputy Director Food, Lahore Region as respondents Nos. 1, 2 and 3 respectively.
2. By virtue of this appeal Syed Kamran Ali has prayed that order dated 25-7-1985 passed by respondent No, 3 dismissing him from service and directing that Rs, 7,99,391.91 be recovered from him as land revenue and order dated 8-2-1986 passed by respondent No, 2 rejecting his appeal may be set aside.
3. The facts of the case are that as a result of registration of case F.I.R. No,33/170, dated 26-7-1983 under section 409/468/471, P.P.C. Read with section 3/6/9 of Food Stuff Control Ordinance at Police Station Narang District Sheikhupura, Deputy Director Food, Lahore Region (respondent No, 3) placed the appellant under suspension for misappropriation of wheat at Maqboolpur Miani and Jandiala Khalsan District Sheikhupura vide his order No, EC-83/9987, dated 8-9-1983. Subsequently the District Food Controller, Sheikhupura (Authorised Officer) issued the following charge-sheet dated 8-2-1984 against the appellant:-- "You Mr. Kamran Ali Shah Fogs (under suspension) are hereby charge-sheeted as under:-- ' That while your posting at Jandiala Kalsan/Maqboolpur Miani Centres during the scheme year 1983-84, you misappropriated the following quantity of Indigo: wheat, Bardana and other stock articles etc:-- {{TABLE TEXT}} (Wheat 1983-84 scheme) alongwith Gunny Bags., S Name of Quantity Cost of wheat and No, Centre of wheat. Incidental charge Ca), Rs, 2.02 per Kgs.
1. Jandiala Kalsan 915.903 M. Tons. Rs, 18,50,124/06
2. Magboolpur Miani 354.532 Rs, 7,16,154/64 Total.
1270.435 Rs, 25,66,218/70 (Barth f:a and Stock articles)
S. Name and No, of Serviceable Unserviceable Total with No, Bardana/Stock with cost, with cost.
Cost.
Art idles. Rs, Rs, Rs, Turpauline = 20 12 9,60) = 8 800 = 20 10;400 Weighing Scale 4 2 1,600 = 2 200 = 4 1,800 3, Brass Seal. 1 1 75 = 1 75
4. Empty G/bags 6149 A Class 6149 86,086 - 6149 86,086 {{TABLE TEXT}} ' By means of the above you appear to be guilty of misconduct and corruption on your part which render you liable to disciplinary action under the Punjab Civil Servants (E & D) Rules, 1975 which may include one or more of the major punishment as prescribed under the said rules.
' You are, hereby required to submit your written defence within seven days from the receipt of this charge-sheet as to why disciplinary action as aforesaid may not be taken against you, stating at the same time within the said period whether you desire to be heard in person.
' Your written defence should reach the undersigned within the above said period failing which it shall be presumed that either you have no defence nor you have declared to offer the same.
' A statement of allegation is attached."
On receipt of appellant's reply dated 19-2-1984 to the charge-sheet, District Food Controller, Sheikhupura (Authorised Officer) issued show-cause notice dated 8-4-1984 jointly issued against the appellant and Foodgrains Inspector Qabil Hussain Qureshi. The portion relating to the appellant was as follows:-- "The explanation furnished by you to the charge-sheet served upon you vide this office memo. No, FC-84/2202, dated 8-2-1984 have been considered and found unsatisfactory on the following grounds:-- ' Kamran Ali Shah, Foodgrains Supervisor (under suspension.
' Equally responsible with Mr. Qabil Hussain Qureshi, Food grains Inspector, under suspension as preparation of all documents has been admitted by him in his explanation. Moreover, the relevant record of wheat pertaining to scheme year 1983-84 was recovered from him at his residence by a team of the Food Officials, Thus he is co-sharers with the Foodgrain Inspector and is responsible for the huge Government loss mentioned in the charge-sheet.
' In the light of the above it is evident that he misappropriated the wheat stock and stock articles etc. Mentioned in the charge-sheet. It has been decided that it is not necessary to have an enquiry conducted in proof thereof. Now it is proposed to proceed against you under Rule 6.3 of Punjab Civil Servants (E & D) Rules, 1975.
' You are, therefore, called upon to show cause within 14 days of the receipt of this notice as to why one or more of the punishment should not be imposed upon you as in Rules and the case recommended to the higher authorities for major punishments.
' Your reply in duplicate should reach the undersigned within the stipulated period failing which it will be presumed that you have nothing to offer in your defence or decline to offer and in that case the matter will be decided ex parte.
' You should also state whether you wish to be heard in person if so you should appear before the undersigned within the above said period for the purpose."
' The appellant submitted reply to the show-cause notice on 17-4-1984. However, the District Food Controller Sheikhupura (Authorised Officer) withdrew the show-cause notice vide his No, FC- 84/7376, dated 6-6-1984 and appointed an Enquiry Committee to enquire into the allegations, contained in charge-sheet dated 8-2-1984 against the appellant.
' On 27-6-1984, Authorised Officer changed the composition of the Enquiry Committee with a direction in the following words:-- "The Enquiry Committee will proceed under and in accordance with the prevision of rules contained in the Punjab Civil Servants (E & D) Rules, 1975 and submit his enquiry report within seven days by proceeding day to day hearing in the matter."
' Vide his impugned order dated 25-7-1985, Deputy Director, Foo Lahore Region (respondent No, 3) dismissed the appellant and directed recover of Rs,7,99,391.91 as arrears of land revenue. The appellant filed an appeal befor the Director Food, Punjab but it was rejected by him on 8-2-1986.
Hence thi appeal.
4. We have heard the learned counsel for the appellant and the learne District Attorney and have also perused the record carefully with their assistance.
5. In addition to the points relating to the merits of the case the learned counsel for the appellant raised the following legal issues:--
(i) The impugned order dated 25-7-1985 is illegal; no proper departmental enquiry was conducted in accordance with the prescribed rules before this order was passed.
(ii) The criminal case was still pending against the appellant and other co-accused in the Court of Senior Special Judge Anti-Corruption, Lahore but the Authority (respondent No, 3) passed the impugned order dated 25-7-1985 without waiting for Court decision. This was against the rules of natural justice as no one could be vexed twice for the same cause of action.
(iii) The impugned order dated 25-7-1985 was passed by respondent No, 3 without personal hearing or giving him opportunity to submit his defence.
6. The learned District Attorney adopted the written objections filed by the respondent No, 3 and submitted that there was no merit in the appeal and it may therefore be dismissed.
7. On careful consideration of submissions made by both sides and on careful examination of the record of the case, we have reached the conclusion that departmental proceedings against the appellant were not conducted in accordance with the provisions of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. In this connection, attention is invited to the following main points:-- #TBS (i) #TBE On receipt of direction from the Authority under rule 5 of the Punjab Civil Servants (Efficiency and Discipline) Rules 1975, the Authorised Officer, under rule 6(2) of the said Rules "shall decide whether in the light of the facts of the case or in the interest of justice, an enquiry is necessary."
Under Rule 6(5) of the abovementioned Rules, if the Authorised Officer considers that an enquiry is necessary, "he shall appoint an Inquiry Officer or Inquiry Committee" Further, under rule 6(6) of these Rules, where an Inquiry Officer or an Inquiry Committee is appointed, "the Authorised Officer shall simultaneously frame a charge and communicate it to the accused together with a statement of allegations."
' In this particular case, vide his No, EC-84/2202, dated 8-2-1984, the Authorised Officer served the charge-sheet on the appellant without first appointing an Inquiry Officer or an Inquiry Committee as prescribed under rules 6(2), 6(5) and 6(6) of the Punjab Civil Servants (Efficiency and Discipline)
Rules, 1975. However, the Authorised Officer appointed an Inquiry Committee on 7-6-1984 vide his No, EC-84/960, dated 7-6- 1984 nearly 4 months after service of charge-sheet dated 8-2-1984. The composition of this Inquiry Committee was subsequently changed by the Authorised Officer on 27- 6-1984.
(ii) Under Rule 7(4) of P.C.S. (Efficiency and Discipline) Rules, 1975 where the Inquiry Officer or the Inquiry Committee is satisfied that the accused is hampering or attempting to hamper the progress of the enquiry, the Inquiry Officer or the Inquiry Committee "shall record a finding to that effect and proceed to complete the enquiry in such manner as he or it thinks best suited to do substantial justice."
' Under rule 7(6), the Inquiry Officer or the Inquiry Committee "shall complete the enquiry proceedings". Under the same rule, the Inquiry Officer or the Inquiry Committee is required to "submit his or its findings and the grounds thereof to the Authorised Officer."
' Under rule 7C(3), where enquiry proceedings are not completed within 45 days of the date on which the accused has put in his written defence, if any, the Inquiry Officer or the Inquiry Committee "shall report the position of the enquiry to the Authorised Officer.. And the Authorised Officer shall immediately cause the same to be produced before the Authority". On receipt of the report of the Authorised Officer, the Authority shall pass such order under rule 7C(4) "for expeditious finalization of the proceedings" as it may deemed fit.
' In this particular case, the Inquiry Officer submitted interim report dated 26-7-1984 to the Authorised Officer stating that the appellant had objected to the proceedings on the ground that Circular letter No, DACE(6)-59/3260, dated 26-7-1967 issued by the Services and General Admn.
Department prohibited holding of parallel departmental enquiry where the allegations were already the subject of enquiry/investigation by the Anti-Corruption Establishment and therefore he was unable to make any further statement before the Inquiry Officer.
' In his interim report, the Inquiry Officer requested the Authorised Officer to seek clarification from the Deputy Director Food, Lahore Region (respondent No, 3) whether he could not proceed with the departmental enquiry further in the light of abovementioned Circular letter dated 26-7-1967 issued by S&GA Department. However, the Authorised Officer, without allowing the Inquiry Officer to complete his enquiry and submit his findings as prescribed under the Rules, submitted his recommendations for major punishment against the appellant to the Authority vide his No, EC- 84/1363, dated 15-8-1984 in the following words:-- "The accused officials although attended Enquiry Committee on 25-71984 but they refused to give any statement in the case and produced a photo copy of letter No, DAC-E-659/3260, dated 26-7- 1967 to the effect that along with the criminal case, departmental enquiry cannot be conducted.
' From the above it has been established beyond any shadow of doubt that the accused officials are reluctant to face the enquiry proceedings and this is an attempt to linger on the same on one pretext or the other. As per documents/record the embezzlement of wheat stock bardana stock articles as stated above was committed by them and they are responsible for this huge loss to Government. They have got defence to offer because the charges stand established against them on the face of record. Therefore, they merit ex parte action for non-cooperative attitude adopted by them. Hence both of them may be awarded major punishment as required under the provisions of (E & D) Rules, 1975."
(iii) On the basis of the above recommendations of the Authorised Officer, the Authority passed the impugned order dated 25-7-1985. Thus the impugned order was based on recommendations submitted by the Authorised Officer without allowing the Inquiry Officer to complete his enquiry and submit his findings as required under rules 7(4) and 7(6) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. The Authority also failed to discharge its responsibility for ensuring "expeditious finalisation of the proceedings" as laid down in rule 7C(4) of the P.C.S. (Efficiency and Discipline) Rules, 1975.
(iv) The Authorised Officer is required to issue show-cause notice either under rule 6.3(b) of the P.C.S. (Efficiency and Discipline) Rules, 1975 when he decides that no enquiry is necessary or under Rule 7A of the said Rules when on receipt of enquiry report from Inquiry Officer or Inquiry Committee, the Authorised Officer has to determine whether the charge has been proved.
' In this particular case the Authorised Officer issued show-cause notice against the appellant on 8-4-1984 although Inquiry Committee was appointed by him on 7-6-1984 nearly 2 months later and the Committee had not submitted its findings.
(v) Show-cause notice dated 8-4-1984 under Rule 6.3 of the P.C.S. (Efficiency and Discipline) Rules, 1975 was also inconsistent with the charge-sheet already served on the appellant on 8-2-1984.
Under the rules the charge-sheet is served when a regular enquiry has to be held whereas show- cause notice under rule 6(3) is served when the Authorised Officer has decided that it is not necessary to hold an enquiry.
' As the show-cause notice dated 8-4-1984 was uncalled for, it was withdrawn by the Authorised Officer on 6-6-1984 under the orders of the Authority conveyed vide it's No, LRE-II-(FI-Gen1- 4)-84/1268, dated 2-51984.
(vi) Vide his order issued under office No, EC-84/960, dated 7-6-1984 the Authorised Officer appointed the Inquiry Committee and directed it to submit the enquiry report within 7 days.
Similarly vide order issued under his office No, EC-84/7801, dated 27-6-1984, the Authorised Officer changed the composition of the Inquiry Committee and again directed the new Inquiry Committee to submit enquiry report within seven days.
' Keeping in view the procedure prescribed for conducting enquiries under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, the Inquiry Officer or the Inquiry Committee cannot he directed to submit its report within seven days from the date of appointment of the Inquiry Officer or the Inquiry Committee. Order passed by the Authorised Officer was therefore arbitrary having no basis in law.
8. Keeping in view the detailed analysis of the case given above we have come to the conclusion that departmental proceedings against the appellant were not conducted in accordance with the provisions of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 and the impugned order dated 25-7-1985 passed by respondent No, 3 was therefore ultra vires of the law. We therefore accept the appeal and set aside the impugned order dated 25-7-1985 passed by respondent No, 3 and impugned order dated 8-2-1986 passed by respondent No,
2. The case is remanded to the competent Authority with the option to proceed afresh against the appellant strictly in accordance with the provisions of the Punjab Civil Servants (Efficiency and Discipline) rules, 1975.
' There will be no order as to costs. Judgment be communicated to the parties.