ABDUL HAMID KHAN (MEMBER).--Syed Nasir Abbas, Assistant Engineer Public Health Engineering Department has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 wherein he has impleaded the Secretary, Housing Physical and Environmental Planning Department, Punjab and the Chief Engineer (South), Public Health Engineering Department, Lahore as respondents. The appeal is directed against the order dated 14-5-1988 imposing the penalty of stoppage of three increments with cumulative effect passed by respondent No, 2 and the final order dated 21-7-1988 passed by respondent No, 1 rejecting the departmental appeal of the appellant.
2. The appellant was proceeded against under the Punjab Civil Servants (E&D) Rules, 1975 for wilful absence from duty, unauthorised removal of official papers from office and for lodging a false F.I.R. against his successor. Respondent No,2 was appointed as Authorised Officer by respondent No, 1 in his capacity as Authority to initiate deparmental proceedings against the appellant under rule 6(2) of the E&D Rules. On 11-2-1988 the Authorised Officer appointed an Enquiry Officer to enquire into the charges and also served a charge-sheet on the accused officer. In response, the accused civil servant submitted his written defence to the Enquiry Officer on 28-3-1988. The Enquiry Officer submitted the Enquiry report to the Authorised Officer on 10-4-1988 on receipt of which the latter served a show-cause notice on the accused officer on 27-4-1988 stating that as the charges levelled against the latter stood proved, he, therefore, proposed to impose a minor penalty under Rule 4 of the E&D Rules.The accused civil servant was called upon to show cause within a period of seven days.
3. Before submitting a formal reply to the show-cause notice the accused civil servant asked on 30-4-1988 for a copy of the enquiry report for the preparation of his written defence arguing that unless he knew which charges were proved and on which findings, it was not possible for him to defend the same. The Authorised Officer wrote back on 2-5-1988 that the (E&D) Rules did not provide for the supply of a copy of Enquiry Report to the accused civil servants in cases where a minor penalty was proposed to be imposed. He was, therefore, again directed to submit his reply to the show-cause notice within the prescribed time. The accused civil servant finally submitted his formal reply to the show-cause notice on 5-5-1988 although he again protested against the non- supply of the enquiry Report. The Authorised Officer on receipt of the report of findings of the Enquiry Officer as also the reply of the accused civil servant to the show-cause notice and after affording him an opportunity of personal hearing, determined that the charges stood proved against him and imposed vide his order dated 14-5-1988 the minor penalty of stoppage of three annual increments with future effect. Aggrieved of this order, the officer filed a departmental appeal on 12-6-1988 before respondent No, 1 which too was rejected by the latter on 21-7-1988 after hearing the appellant and hence this appeal before the Tribunal.
4. The learned DA. and the learned counsel for the appellant both agreed that since giving future effect to the minor penalty of stoppage of three increments was not provided in the (E&D) Rules, it was beyond the competence of the Authorised Officer and thus without lawful authority. However, the point that really deserves attention of the Tribunal is the contention of the learned defence counsel that "since the impugned order of penalty is based on the findings A in the enquiry report, a copy of which has not been supplied to the appellant in spite of persistent demand, the order of penalty is not sustainable in law and requires to be set aside in appeal." He has further alleged that the Enquiry Officer rushed with the enquiry in an extraordinary haste and that he was not impartial.
In support of his contention the learned counsel for defence has quoted the Supreme Court judgment in Mir Muhammad's case reported as PLD 1981 SC 176. An extract from the relevant portion of the judgment is reproduced below: "After giving our anxious consideration to the submissions made by the learned counsels for the parties, we have formed the view that in a case where a formal inquiry is held, it seems to be an implicit requirement of the relevant rules that a copy of the inquiry report should be furnished to the accused official so as to enable him to offer his examination with regard to the adverse findings, if any, recorded against him by the Inquiry Officer or the Inquiry Committee, as the case may be. Such a requirement cannot be brushed aside by saying that it would amount to a second show-cause notice."
The Honourable Court further observed as under: " This being essential in order to satisfy the requirement of the Rules, the failure to do so invalidates the recommendations of the authorised officer and the ultimate order passed on their basis by the authority against the accused officer."
5. On the other hand, the learned D.A. has cited a recent Supreme Court judgment in the case reported as 1990 SCMR 183 (Abdul Razzaq Khokhar v. Province of Punjab) in which one of the questions of law to be examined by the court was whether the proceedings against the petitioner stood vitiated as a result of omission to supply copy of the enquiry report. In this case it was contended by the Assistant Advocate-General that the rules did not provide, as a part of the procedure, for the supply of copy of the enquiry report. In order to distinguish the decision in the case of Syed Mir Muhammad and that of Abdul Razzaq Khokhar it was urged by him that as no prejudice had been caused to the appellant, the action taken could not successfully be challenged by him. The appeal of Abdul Razzaq Khokhar was dismissed by the Honourable Court with the following observation:- "In the absence of a statutory provision entitling the officer facing a departmental enquiry to receive a copy of the enquiry report, the requirement of it can be only enforced on the ground of fairness and avoidance of prejudice to the officer concerned. In Syed Mir Muhammad's case, as a fact, it was held that non-supply of the enquiry report had materially prejudiced the officer. In this case the Tribunal has held as a fact that it has not prejudiced the officer. He had replied in detail to show-cause notice and was also heard personally. There was no extraneous factor entering the evaluation of his guilt or otherwise."
It directly follows from the judgment quoted above that in the case before this Tribunal the appellant would have been entitled to receive a copy of the enquiry report on the grounds of fairness and avoidance of prejudice. It was laid down in Queen v. Rand (1866 QB 230) that where bias is alleged the reviewing court does not decide whether the decision was in fact biased but whether in the circumstances reasonable possibility of bias was established. Thus in order to prove the absence of any bias the test in this case would be whether a fair B procedure was adopted and adequate opportunity was given to the accused civil servant of presenting his case before the Enquiry Officer.
6. We have to look closely into the departmental proceedings to see if there was any extraneous factor which might have affected the proceedings giving rise to suspicion of unfairness and prejudice and whether adequate opportunity was given to the appellant of presenting his case.
The appellant has alleged that the Enquiry Officer was partial because he completed the enquiry on 9-4-1988 in just one sitting without allowing the accused officer to lead evidence. In fact, the very next day i,e, on 10-4-1988 the accused civil servant wrote to the Authorised Officer complaining that the attitude of the Enquiry Officer was partial to such an extent that he gave his final verdict during the first half hour and that too in the absence of any record or witnesses. He, therefore, requested that some other Enquiry Officer may be appointed to conduct an impartial enquiry as he did not expect justice from the present Enquiry Officer. At that time, however, the, appellant was not aware of the fact that the Enquiry Officer had already concluded the enquiry and submitted his report to the Authorised officer the very next day i,e, on 10-4-1988. Why the Enquiry Officer was in such a rush is not very clear from the papers produced before this Tribunal. It seems, however, that since he was being pressed by his superiors to complete the enquiry within the stipulated time of 60 days which period he perhaps erroneously thought was to end on 10-4- 1988 (He was appointed Enquiry Officer on 11-2-1988) he, therefore, made short work of the proceedings and submitted his report without allowing the accused civil servant adequate opportunity to produce witnesses and relevant documents. This was in any case a wrong impression on the part of the Enquiry Officer because the period of 60 days for completion of enquiries does not start from the date of appointment of Enquiry Officer. It is clearly laid down in rule 7(6) of the (E&D) Rules that: "The Inquiry Officer or the Inquiry Committee, as the case may be, shall complete the inquiry proceedings within a period of sixty days, commencing from the last date of submission of the written defence by the accused and shall, within ten days of the expiry of the said period of sixty days or within such further period as may be allowed by the authorised officer, submit his or its findings and the grounds thereof to the authorised officer."
This may be read with rule 6(6) ibid which provides as under: "Where an Inquiry Officer or an Inquiry Committee is appointed under sub-rule (5), the authorised officer shall simultaneously frame a charge and communicate it to the accused together with a statement of allegations explaining the charge and other relevant circumstances which are proposed to be taken into consideration and require the accused, within a reasonable time which shall not he less than seven days or more than fourteen days from the day the charge has been communicated to him, to put in a written defence directly before the Inquiry Officer or the Inquiry Committee, as the case may be."
7. The combined effect of rule 7(6) read with 6(6) is that since the period for submission of defence by the accused officer was not specified by the Authorised Officer in his order dated 11-2-1988 appointing the Enquiry Officer and serving the charge-sheet on the accused civil servant wherein the latter was required to submit his defence reply within the 'stipulated period', this period could not therefore, be more than 14 days. Even if it is assumed that the accused officer received the charge- sheet the day it was issued i,e, on 11-2-1988 even then he could submit his reply by 24-2- 1988 at the latest. The period of 60 days for the submission of the written defence should, therefore, have been calculated from the said date i,e, 24-2-1988 which would have ended on 23-4-1988.
Since the accused civil servant actually submitted his written defence on 28-3-1988, the Enquiry Officer still had almost a month to himself to complete the enquiry in accordance with the procedure laid down in the (E&D) Rules and 'at the same time affording the accused civil servant adequate opportunity to present his case. It thus appears plausible that at this point of time the Enquiry Officer due to his miscalculation of the stipulated period was not concerned so much with conducting the enquiry in accordance with the prescribed procedure but was perhaps pushed more by considerations of time limit which in our view was an extraneous factor that might have influenced the final recommendations of the Enquiry Officer and thus prejudiced the officer. The allegation that the accused civil servant was not permitted to lead evidence is also borne out by the enquiry report as it was not accompanied by any statement of witnesses. All the documents attached with the enquiry report do not contain even a single paper which might have been produced by the accused officer. Thus the element of undue haste in conducting the enquiry which deprived the accused officer of adequate opportunity to present his case before the Enquiry Officer is proved beyond doubt.
8. In an Indian case (ILR 2 Punjab 11) it was observed that "before passing a quasi-judicial order it is the duty of the appropriate authority to afford he delinquent an opportunity not only to rebut the allegations in the show-cause notice but also to substantiate the allegations made in his reply thereto, which if proved, could completely belie the allegations made against him. To come to a hasty decision without sticking to the principles of natural justice is serious matter which makes the impugned order liable to he quashed. "To that we would like to add from Sir Allen's Law & Order wherein he says that "In widest terms, any interest or motive or influence, which in the opinion of the Court, may impair the `objectiveness' of a decision given or what is equally important, may even have the appearance of so doing, will invalidate a judicial or quasi-judicial determination."
9. As far as the matter relating to the provision of a copy of enquiry report I to the accused civil servant at the time of serving the show-cause notice is concerned, we are of the view that even though the provision of supply of enquiry report may not be mandatory or a statutory requirement but it can be enforced! on the ground of fairness and avoidance of prejudice to the officer. In Syed Mir Muhammad's case it was held that non-supply of the enquiry report had materially prejudiced the officer. In the instant case too we find that the non-supply of the enquiry report has prevented the accused officer from knowing the basis or grounds on which the Enquiry Officer based his findings. When the accused civil servant insisted that he should be given a copy of the Enquiry Report he was told by the Authorised Officer that rule 4 of the (E&D) Rules did not provide for supplying a copy of the enquiry report in cases where it was proposed to impose a minor penalty.
Conversely, it means that had it been a case of major penalty a copy of the report would have been supplied. This is obviously a highly distorted view of the rules.
10. The E&D rules are silent on the question of supply of enquiry report to the accused officer alongwith the show-cause notice. However, this being a principle of natural justice, the requirement should be considered to be implied in the statute. In Maudoodi's and Zahir Ahmad's cases the courts have observed that the principles are only presumptions and express words in an Act can exclude them. The point was further elaborated in the case of Commissioner of Income Tax v. Fazlur Rehman PLD 1964 SC 410 wherein it was observed that the rules of natural justice are to be read as part and parcel of every statute unless and until there is a specific provision in a particular statute to the contrary.
11.Although not mentioned in so many words in the Authorised Officer's reply dated 2-5-1988, it is however, presumed that while refusing to supply a copy of the Enquiry Report he had placed reliance on Law Department's Circular No, Reg. 3-15/81(P-II) 2972, dated 7-10-1984. The presumption is borne out by the written objections to the appeal filed by respondent No, 1 wherein the action of the Authorised Officer in refusing to supply a copy of the enquiry report has been defended by saying that 'the enquiry report is supplied only when a notice for imposition of major penalty is recommended in pursuance of Law Deparment's Letter No, Reg:3-15/81(P-II) 2972, dated 7-10-84." The construction placed by the respondents on Law Department's aforesaid letter is obviously illogical and not well founded. In this letter Law Department had referred to the judgment of the Supreme Court delivered in the aforesaid case of Syed Mir Muhammad. Since these observations were made in the context of a case in which the Authorised Officer had submitted his recommendations to the Authority for imposing a major penalty, these have been misconstrued to mean that the enquiry report could be supplied only in cases where a major penalty is to be imposed. In this connection it is important to read the operative part of the aforesaid letter of Law Department which nowhere referes to and does not make any distinction between a major and a minor penalty: "Failure on the part of the Authorised Officer to give such opportunity of explanation against the proposed action to the accused or to provide a copy of the enquiry report to him invalidates the departmental proceedings. It is, therefore, advised that in order to avoid invalidation of departmental proceedings the said requirement may be kept in view and complied with by all the Authorised Officers."
We are thus not persuaded to draw any fine distinction between a case of major penalty and one of minor penalty for purposes of supplying enquiry reports to the accused civil servants.
12. For all these reasons we accept the appeal and set aside the impugned orders passed by the Authorised Officer and the Authority. There will be no order as to costs.