JUSTICE (RTD) MUNAWAR ALI KHAN (CHAIRMAN).- On receipt of intimation about the death of Azizur Rehman Khan his Appeal (No. 47 of 1986) pending before this Tribunal was disposed as abated, vide order dated 30.9.1986, appearing in the Order Sheet. However, Masooda Aziz and others, legal heirs of the deceased Azizur Rehman Khan went in appeal to the Supreme Court whereupon the case was remanded back to this Tribunal for fresh decision after substituting the legal heirs in place of the said deceased and after granting opportunity of hearing to the parties vide judgement of the Supreme Court dated 4th November, 1990 in Civil Appeal No: 145-K of 1987. In compliance of the said judgement of the Supreme Court, the necessary substitution of the legal heirs was made and the case was heard afresh.
2. The case of the deceased, Azizur Rehman Khan (hereinafter referred as the deceased appellant), as it emerges from his memo of appeal, was that he was working as Assistant Registrar, Cooperative Societies, when departmental enquiry was instituted against him on the charge that he allegedly released the attached and awarded property of the Sind Provincial Cooperative Bank Ltd. In his capacity as Recovery Officer. Mr. A. N. Junejo, Deputy Registrar, Headquarter, was appointed as Enquiry Officer-to hold the said enquiry. Due to his illness the deceased appellant could not appear before the said Enquiry Officer who ultimately submitted his report dated 10.9.1980 ex parte, holding the deceased appellant guilty of the charges made against him, with recommendations that disciplinary action be taken against him. On the basis of the said report the Secretary, Labour and Cooperation Department, by his order dated 9/15-12-1980 dismissed the deceased appellant from service. The department appeal preferred from the said order was rejected by the Chief Secretary vide his order dated 2nd June, 1982. He then filed Appeal No:52/of 1982 before this Tribunal, which was allowed on technical grounds by judgement of the Service Tribunal dated 22nd May, 1984.
As per directions of the Service Tribunal, the deceased appellant was supplied a copy of enquiry report and was also served with final show-cause notice. After considering his explanation in reply to the said show-cause notice and after giving him personal hearing, he was once again awarded the same major penalty of dismissal from service vide order dated 29th December, 1985 of the Secretary, Lahore and Cooperation Department. As required by law, he challenged the said order in departmental appeal filed before the Chief Secretary, but as it remained undisposed even after lapse of 90 days, he filed the present appeal.
We heard Mr. Muhammad Maqsood in support of the appeal and Mr.M Aqil Awan on behalf of the official respondents. We also perused the case file with meticulous care.
3. It would appear that the order of the .Deceased appellant's dismissal from service which has been called in question in this appeal, was passed in the wake of the enquiry report, dated 10.9.1980. The said report revealed that the repeated efforts made by the Enquiry Officer to secure the participation of the deceased appellant in the enquiry proceedings, proved fruitless.
Accordingly the Enquiry Officer had no option but to finalize the enquiry and compile its report ex parte of the deceased appellant. On the other hand the contention raised on behalf of the deceased appellant was that owing to his illness, he tried his best to have the enquiry proceedings postponed until after his recovery but without any success. Therefore, the deceased appellant's learned counsel was emphatic in his arguments that no reasonable opportunity was provided to his client for his defence and in violation of the relevant rules and the rule of natural justice, the deceased appellant was condemned unheard. Thus it is an admitted position that the enquiry was finalized in absence of the deceased appellant. But in view of the conflicting stands taken by the parties in this regard, it has to be decided at whose door-step, the blame for ex parte decision would have to be laid.
4. We have gone through the enquiry report with meticulous care. It clearly shows that when the deceased appellant was summoned for the first the, he did appear before the Enquiry Officer on 4.3.1979. But on his own motion, he was granted adjournment to enable him to collect the relevant file from the office of the Deputy Registrar, Karachi. Thereafter he failed to show up with the result that the Enquiry Officer went on issuing the process for his attendance from the to lime. He twice consulted the Registrar as regard the manner in which the deceased appellant's presence was to be secured. As disclosed in the report, the deceased appellant was served on more the for appearing before the Enquiry Officer on 28.4.1979. But instead of attending before him, he sent him written request for adjournment on the ground of his illness. Thereafter fresh notice was issued to him twice, first the by registered post and second the under postal certificate but without any response. Of course the deceased appellant has denied the receipt of the last mentioned to notices. Assuming that neither of the last to notices were properly served on hint but that by itself would not establish that the deceased appellant was not to blame for ex parte proceedings. In our opinion after he was duly served for the first the and in response to the said service he actually put in his appearance before Enquiry Officer, it was his duty to have ensured his attendance regularly on each subsequent date of hearing. In case of his illness it was again for him to have made proper arrangement for securing adjournment of the enquiry from the to the. Instead of doing so, he showed gross negligence Accordingly we have come to the conclusion that the deceased appellant was utterly indifferent to the enquiry proceedings and therefore if the enquiry was finalized ex parte he had to thank himself.
5. However, we are in complete agreement with the views of( the deceased appellant's learned counsel that although the deceased appellant was declared ex parte for the purpose of enquiry proceedings, there was no indication in the enquiry report that any enquiry was ever held in his absence. He was also correct in pointing out that said report was absolutely silent as to the specific charges the deceased appellant was called upon to face and the material relied upon by the Enquiry Officer in holding any such charges as proved. We were also amused by the learned counsel's disclosure that right from the beginning the deceased appellant was kept in the dark about the charges levelled against him as neither the usual show-cause notice nor the charge- sheet accompanied by statement of allegations was ever served on him. We have carefully gone through the files of both the appeals (Appeal No.52/1982 and Appeal No. 47/1986) filed by deceased appellant. Although the name of his earlier appeal(No.52/1982) was not happily worded, yet its para 9 reads as follows: "That the appellant was neither heard nor any notice was given to his from either respondent No.2 (Secretary, Labour Department) and 3 (Chief Secretary)". The reply to this para as given in the written statement filed by the AAG in the said appeal was as follows: "The contents of p ra 9 are admitted. In view of this, the learned State Counsel was also constrained to concede the position as stated in the afore-mentioned written statement. More-over no annexure being the requisite show-cause notice or charge-sheet was enclosed with the said written statement. Similarly in para 9 of the written statement filed by the learned AAG in the present appeal, it was not denied that to notice was ever given to the deceased appellant. Even both the written statements are silent as to the specific charges the deceased appellant was required to meet. Thus the very foundation (i.e. Show-cause notice/ charge-sheet) on which the structure of disciplinary proceedings was to be raised was missing. Even our predecessor Service Tribunal who dispose of the earlier appeal took no notice of the at of such serious omission. As disclosed in its judgement only copies of enquiry report and final show-cause notice were directed to be supplied to the deceased appellant. In absence of the initial show-cause notice/charge sheet and statement of allegations it was not clear what charges the deceased appellant was required to meet. As pointed out above that even after declaring the deceased appellant as expanse, no enquiry was every held nor any material allegedly proving the charges levelled against the appellant was brought on record. Mere absence of the deceased appellant from the enquiry proceedings was no reason to relieve the Enquiry Officer of his duty of holding the enquiry.
Obviously he failed to discharge the duty assigned to him. The absence of the deceased appellant could not be held as proof of the charges which were required to be established independently by reliable evidence, oral or documentary. Admittedly neither any witness was examined by the Enquiry Officer nor he took into consideration any document in arriving at the conclusion that the charges were proved against the deceased appellant. Obviously the Enquiry officer had absolutely no basis for the finding recorded by him in his report.
6. We have also examined in details the other to important documents namely the final show- cause notice and the impugned order of the deceased appellant's dismissal from services. The said documents, to, had not disclosed. The specific charges which were made the basis of the said dismissal. All that these to documents indicated was that the charge against the deceased appellant was the mis-use of powers. However, further elaboration was altogether missing as to what powers were vested in the deceased appellant and how and in what manner and in which case he mis-used the said powers. In absence of all such details it was difficult to hold that the alleged charges were properly made home to the deceased appellant much less they were proved against him.
7. In view of the above discussion the penalty imposed upon the deceased appellant could not be sustained. Accordingly the appeal filed by him is allowed and the impugned order of his dismissal from service is set aside with no order as to costs.
Given under our hands and the Seal of this Tribunal on this 20th day of August, 1991 at Karachi.