' Malik Lal Khan, copy clerk, was proceeded against under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, on the charge of corruption and dismissed from service by order dated 18- 5-1989, passed by the District and Sessions Judge, Rawalpindi. He also gave a direction for registration of a criminal case against the appellant. This order is under challenge in this appeal.
' The proceedings were initiated against the appellant on the basis of a complaint dated 20-7-1988 filed by Sohail Abad, before the D&SJ while he was on tour to Murree. The complaint runs as under:
(2) That about 11-30 a.m. On the same day we came to Malik Lal Khan who was to furnish us the copies. When he came to know that it was an urgent matter and Raja Ehsan Nawaz, Vice- Chairman, had to seek remedy in the Lahore High Court, he very boldly demanded Rs,300 from Mr. Siddique who alongwith me was also present at that time. He also said that Rs,200 were for his senior whom he called by the designation as C.O.C. And Rs,100 for himself. Mr. Siddique had to pay him because there was no way out.
(3) That about 1-30 p.m. Malik Lal Khan informed me that his senior had gone to his home, thus it was not possible for him to furnish us the copies on that day. On seeing us perplexed and depressed, he said he would do something for us. Thus, he again demanded Rs,200 for going to the house of his senior to get the copies signed by him. He also demanded Rs,150 for the stamps to be affixed on the form, in spite of the fact that we had offered our stamps which we had bought for the same purpose.
(4) That on hearing all this I told Malik La Khan that I have been selected as a Judicial Officer and he should not do all this, but he paid no heed to it and got the money from Mr. Sidique and went to the house of his senior at Kamalabad, Rawalpindi, and handed over to us the copies of the judgment.
3. The D&SJ called for the petitioner's explanation who in his reply denied all allegations. This explanation was found unsatisfactory and the D&SJ appointed Mr. Farrukh Latif, Additional D&SJ, to hold preliminary inquiry. The I.O. Examined Sohail Abad who in his statement dated 8-9-1988 deposed that Raja Ehsan Nawaz Abbasi, forgave the accused; that out of Rs,650 a sum of Rs,170 was incurred on stamps and the remaining amount of Rs,480 was returned to him by the appellant in cash in the presence of the I.O. In these circumstances, he further deposed that he was not prepared to make any statement against the accused. The I.O. Did not proceed further with the inquiry and on the same date i,e, 8-9-1988, returned the record of the inquiry to the D&SJ.
4. After perusal of the aforesaid note, of the Inquiry Officer, D&SJ recorded an observation that prima facie the appellant was guilty of receiving illegal gratification and that he should be served with a charge-sheet. Accordingly the appellant was served with a charge-sheet reproduced below: "That you on 6-7-1988 had demanded Rs,650 from Mr. Sohail Abad resident of House No, 112 Street No, 34, G-9/1, Islamabad for supplying the copies of judgment in the case Election Petition re: `Aftab Abbasi v. Raja Ahsan Nawaz' in the presence of Raja Ahsan Nawaz and Mr. Siddique. This amount was paid by him to you, on 20-7-1988. Mr. Sohail Abad presented a complaint against you during my tour at Murree. The complaint was supported by an affidavit in which he had levelled allegation of receiving illegal gratification. Upon receipt of this complaint on 21-7-1988 you were called upon by the undersigned to submit your explanation. In reply of the complaint you had submitted your written explanation. Finding your reply not satisfactory, I had directed a preliminary inquiry to be got conducted by Mr. Farrukh Latif, Additional District and Sessions Judge. The inquiry report has been received. From the perusal of the report it appears that you had returned a sum of Rs,480 in cash before the Inquiry Officer to the complainant. The statement of complainant is also on the file to this effect. In this way the charge of receiving illegal gratification has prima facie been made out."
' The appellant was directed to submit to the District and Sessions Judge, his written defence to the charge-sheet within 7 days. This direction was complied with by him and in his reply dated 28-9- 1988 the stand taken up by him, was that he supplied the copy of the judgment to the party without delay; that the opposite party then also appeared on the scene to obtain the copy and Sohail Abad who introduced himself as a Civil Judge, wanted the appellant not to issue the copy to the opposite side. The appellant denied to have refunded the bribe money Rs,480 to Sohail Abad. The D&SJ found the written reply as unsatisfactory, ordered regular inquiry and entrusted the same to Hakim Syed Akhtar Irshad, Addl.D&SJ, Rawalpindi.
' The Inquiry Officer, examined Sohail Abad who corroborated the contents of his complaint and in his examination-in-chief said that the bribe money was received by the appellant from Muhammad Siddique in his presence. Raja Ihsan Nawaz, appeared as P.W. 2, who categorically stated that he got the copy on supply of the stamps worth Rs,170 and did not pay any extra amount to any one. Mr. Farrukh Latif, (P.W. 3) also entered the witness-box and deposed that a sum of Rs,480 was returned to the complainant Sohail Abad by the appellant in his presence. Likewise Muhammad Siddique, P.W.4, also appeared for the prosecution to state that neither illegal gratification was demanded by the appellant, nor it was paid by him nor by Ehsan Nawaz; that the latter got the copy on furnishing to the copyist Malik Lal Khan, stamps worth Rs,170. In defence the appellant produced Ch. Muhammad Khalid, Advocate, who deposed that Sohail Abad was his colleague in the profession and in his presence, he instructed the appellant to deliver copy to his party and withhold the supply thereof to the opposite side.
6. The Inquiry Officer in his report dated 15-3-1989 relied upon the statement of Sohail Abad and Mr. Farrukh Latif to the effect that a sum of Rs,480 was returned to the complainant by the appellant in his presence and maintained that the payment and return of bribe money was fully established. He 'submitted this report to the D&SJ, who in the impugned order observed:- .. I have gone through the report submitted by the learned Enquiry Officer and it is clear that the charge has been proved against the accused official. As a result of it, I have decided to impose a major penalty on him and order that the services of the accused official stand dismissed with immediate effect After perusal of the inquiry file and hearing the appellant I find that the proceedings conducted and decision rendered against him, suffer from patent illegality and cannot be upheld. In this connection a reference to Rule 5 will provide that when on the basis of information received the "Authority" is of opinion that there are sufficient grounds for proceeding against the civil servant, it shall direct the "Authorised Officer" to proceed against the civil servant concerned and if no Authorised Officer has been designated the Authority shall appoint an Authorised Officer. Under Rule 6(2) it is the Authorised Officer, who in the light of the facts of the case and keeping in view the interest of justice, has to decide whether the inquiry was necessary. If he comes to the conclusion that an inquiry is essential, as per Rule 6(3), he has to appoint an Inquiry Officer and simultaneously frame a charge-sheet under Rule 6(6); serve it on the accused together with the statement of allegations, requiring him to put his written defence within a reasonable time which shall not be less than 7 days or more than 14 days and forward to the Inquiry Officer the record alongwith the material necessary for the inquiry. It is in Rule 7(6) that the Inquiry Officer shall complete the Inquiry within 60 days, or within other period allowed by the 'Authorised Officer' and submit his findings alongwith the grounds thereof to the latter who under sub-rule 7(A) must determine whether the charge has been proved. If a decision is taken to impose a major penalty, he after affording an opportunity to the accused to tender his explanation against the proposed recommendations, has to transmit his inquiry report alongwith other record to the "Authority".
Thereafter, the 'Authority' may pass such order as considered fit by it but before imposition of the penalty on him, the accused is entitled to an opportunity of being heard in person.
8. These provisions have been completely ignored. In the appellant's case the D&SJ was the 'Authority', but he did not appoint any Authorised Officer and himself took a decision that an inquiry was necessary and then appointed an Inquiry Officer. Thus, the report of the Inquiry Officer, was neither routed by him through any Authorised Officer nor any determination was made by the latter that the charge against the accused was proved, nor any recommendation as to the imposition of penalty forwarded to the Authority. In fact the D&SJ combined in himself the role of the Authority and the Authorised Officer, which was wholly illegal. It is to be noticed that under the 2nd proviso to clause (c) of Rule 2,-- "In relation to a civil servant the Authority may be authorised to act as an Authorised Officer." but there is no such authorisation on the file empowering the 'Authority' to act as an Authorised Officer.
The procedure regarding holding of inquiry is for the benefit of the accused, ensuring a fair probe into the charges against him. The appellant's case has been exceedingly prejudiced by the mode of inquiry conducted against him. These provisions are imperative in character but have been grossly violated.
9. Even on merit there is not enough material on the record to sustain the impugned order. In the complaint and in his deposition, the complainant asserted that the illegal gratification was paid to the appellant by Muhammad Siddique, but according to the charge-sheet the amount was demanded by the appellant from the complainant and paid by him. The prosecution evidence is thus, in conflict with the case against the appellant, set out in the charge-sheet. Muhammad Siddique, as already observed, totally denied to have given any bribe to the appellant. He has gone to the extent, to state that the appellant never demanded any illegal gratification. The Inquiry Officer has not touched upon this aspect of Muhammad Siddiqe's statement in his report, dated 15-3-1989. The statement of Ehsan Nawaz, who was applicant for the copy, is also exculpatory. As regards the payment of Rs,480 to the complainant, even if such payment is accepted, the inquiry report as well as the statement of Mr. Farrukh Latif, is silent in respect of the character and nature of the amount. The applicant and his defence witnesses have levelled certain allegations against the complainant. When his statement is paced in juxtaposition with other evidence, the material does not present a preponderance of probability much less such a degree of proof as required to prove the appellant's guilt, inflict penalty on him and to expose him to the vicissitude emanating from the registration of a criminal case.
' For all these reasons, this appeal is accepted and the impugned order set aside. Consequently the appellant stands reinstated in service with back benefits.