1. ORDER Muhammad Daud Khan (Chairman).--Habib-ur-Rehman's premature retirement from service as a result of Departmental Inquiry, confirmed in departmental appeal, is subject-matter of present proceedings under Service Tribunals Act. The departmental order passed in appeal is dated 31-10-1969. Brief resume of facts, to understand the argument offered by and against the appellant, will be necessary. The appellant was employed as Diary Assistant, Military Farms, Malir Cantonment, Karachi. In September 1967, some milk powder, allegedly removed from the Farm Stores, was recovered by F. I. U. while certain persons were marketing it in the open Bazar. The investigation led to inquiry for determining amount of loss and responsibility. The Court of Inquiry, under Board of Officers, was commissioned to enquire into the circumstances under which milk powder weighing 70, (seventy) pounds, was pilfered on 27-9-1967 and then marketed. The Board was heqded by Major Nasar Ullah Khan who bad Captain Sibt-i-Hassan and 2nd Lieutenant Z. A.
2. Khan with him on the Board. The Board examined Messrs Khadim Hussain, Noor Hassan, Jumma Gul. Kala, Muhammad Hussan, Muhammad Zaman. Ali Bukhsh, Hakim A1 i, Gbulam Muhammad, Muhammad Sultan and Muhammad Hussain. They submitted findings to the convening authority confirming the pilferage and disposal of milk. They also named Zaman Gul and Allah Varia for transporting milk powder to the market. It was further added that milk powder was only removed from the milk room where it was kept for pasteurisation. On the strength of this report Station Commander ordered disciplinary action on lst of November 1967. D. D. A. F & Y as advised preferred charge-sheet to Habibur Rehman. It is dated 14th November 1967. The charge held him > responsible for pilferage of 70 pounds of whole milk powder from Dairy Section and for selling it in the Bazar to unauthorised Civilian Shopkeepers. Para. 2 of the charge-sheet runs: "He is hereby called upon to submit his defence within 7 days of the receipt of this charge-sheet, failing which it will be assumed that he has nothing to say in his defence and ex parte decision will be given. He should also state whether (a) he wishes to be heard in person, (b) to call witnesses on his behalf.
3. He will have to call witnesses, if any, at his own cost.'* The charge-sheet shows that the proceedings of the Court of Inquiry, conducted by Board of Officers were also supplied. Subsequent inquiry was held under Defence Service Classification Control and Appeal Rules, 1961 by a Major who except for Kala examined rest of the necessary witnesses to arrive at a conclusion of positive guilt. The competent authority after considering the report and explanation of the accused, ordered compulsory retirement from service on 3rd May 1969. Major penalty proposed, was awarded as above. An appeal was preferred to Director of Remounts Veterinary and Farms, who upheld the order of the competent authority. This order dated 31st October 1969, was however, preceded by an application for personal hearing, which was ignored altogether, to justify lengthy arguments of lost right. The first legal objection, therefore, is that the appellant has been condemned unheard by the appellate authority. Other points, agitated, are withholding of the report submitted by the F. I. U. and denied right of cross-examination before the Board of Officers. It is said that the refusal and non-supply of documents renders the subsequent inquiry illegal. As these points need no lengthy reply, we propose to deal with them in preference to the point mentioned in the earlier paragraph. Proceedings by F. I. U. were in the nature of an investigation to determine whether the milk was Government property and, if any, public servant was involved in it.
4. Subsequently Board of Officers was convened to determine the extent of loss and responsibility. At the time appellant was not being subjected to an inquiry to entitle him to the copies of the earlier reports or statements. When the loss was assessed, the Court of Inquiry under Service Rules was convened to determine the extent of the guilt of the accused. He was then given copies of statements made by witnesses before Board of Officers and ample opportunity to cross-examine them. He was also invited to produce defence and if desired would be heard in person.
5. Consequently no illegality was committed to bolster the argument. Other point in this very context which was urged by the appellant's counsel was that repeated inquiries could not be held unless competent authority did agree with earlier findings. There being no orders of disagreement with the reports, the final inquiry could not be held and was not competent. The argument is misconceived. As already pointed out F. I. Us. probe was only in the nature of investigation and so were the proceedings by the Board of Officers. When it transpired that accused may be responsible for joss, the only inquiry held in the case was ordered under the C. C. A. Rules. The contention, therefore, is fallacious and cannot be upheld. \ Mere important point, however, is non- determination by the appellate authority of the right to personal hearing. Learned counsel for the State contends that no such right vests in an appeal uader the Service Rules, but < he tried to ignore that silence of the rules does not necessarily import its non-existence. Such a question arose before the Supreme Court (PLD 1959 SC (Pak.) 46). On page 52 the principle has been enunciated that the right to be heard by the competent authority equally persists at the stage of appeal. The Supreme Court said "I see no reason why the right to a sufficient hearing should be limited to an inquiry by a Tribuaal of first instance" and again ' I cannot think that the Appeal Tribunal is at liberty to cut down the right of appeal, that is to say, the right to have an adjudication on the subject-matter of the appeal upon the materials which the appellant desires before it." The case before the Supreme Court was under Rent Restriction Ordinance, yet the principle was generally enunciated to be applicable to both judicial and semi-judicial Tribunals. Many rulings were relied upon and most of them were not in pari materia with the elements involved, yet they were considered to afford useful guidance. The same principle was reiterated in PLD 1967 SC 62.
6. The right wag qualified by a demand to be heard. The ratio decidendi of the 2 rulings, therefore, is that although the right to be heard at the stage of appeal is not an absolute right, yet when such a demand is made, judicial or semi-judicia) authorities should normally accede to the request.
7. Denial of the right without reason may of necessity vitiate the proceedings. However, we are not basing our order on thij failure. There are other reasons reflecting gross neglect of judicial principles, besides the legal questions that have been argued at length. In the final inquiry Kala was not available. The Major of the F. I. U. was not called but no prejudice could have been c<sued because he was only Incharge of the investigation by F. I. U. and did not discover any thing in person. The argument, therefore, that Kala and other defence witnesses were not summoned, is not available to the appellant because it was the duty of the appellant to provide his defence and to afford addresses of the witnesses to the Inquiry Officer for summoning. As no final addresses were available, failure of the the Inquiry Officer to examine them squarely rests at the door of the appellant. The Major Incharge of the F. I. U. not being witness of facts could not have been summoned, because opinions are inadmissible in evidence. Rest of the list did not disclose addresses, for summoning them. The point as such is not available yet the findings recorded have to be scrutinized to confirm the guilt. The only witness of facts examined, at the inquiry, was Sher Dil.
8. He, according to his own admission, was personally involved. His statement gives only two months to the appellant to forge the thing, because he was hospitalised up to July, 1967. During these two months, the appellant was assistant to Noor Hussain. His duties did not include drawing of milk. It fell to Sher Dil's share to draw the powder and then under supervision of either the Assistant or the Supervisor, make the preparation. There he allegedly saved part of the powder, on the instructions of the appellant to store at Kala's place. Under cross-examination in answer to question No. 7, he brought out a new story that Habib-ur-Rehman used to give him 4/5 bags of milk powder from the Dairy Store and not from the Pasteurisation Room. This contradiction in his statement not only leaves the story ditched but makes the witness unreliable altogether. Such evidence, of a co- accused, uncorroborated, does not lead to conviction of guilt to justify any penalty, when the manager declines presence of any shortage, and certifies to good character. Hakim Ali also gives a clean chit to Habib-ur-Rehman and so does Ch. Ghulam Mohammad, who was Store-keeper. His assertion that milk was issued by him to Sher Dil on instructions of the Supervisor, on indent and that there was no shortage in the store, furthers innocence of the appellant. Consequently we have no other evidence except that of Sher Dil to incriminate the appellant and uncorroborated testimony of an accomplice, whose state-j ment is also inconsistent cannot be made basis for such a severe punishment.!# Learned counsel for the State contends that Rules require conviction of the' competent authority and if in his opinion a public servant is guilty of misconduct, the Tribunal should be very reluctant to upset the opinion. We have given our deep thought to the argument but regret that it is unacceptable. An opinion based on facts which could have been formed by any reasonable person cannot be interfered with. Yet if an opinion finding is based on deficient evidence it cannot be said to be sacrosanct. As already pointed out, there is but one witness whose guilt is proved by admission and his inconsistency reflected by bis own testimony.
9. Removal from service on such evidence, would be travesty of justice. We are, therefore, of the opinion that the orders dated 3-5-1969, and 31- 10-1969, are bad in law and should be vacated. The orders are, consequently, set aside under section 5 of Service Tribunals Act, 1973.