JUSTICE (RTD) MUNAWARALI KHAN, (CHAIRMAN).- This appeal has arisen from the order of the Secretary, Irrigation and Power Department, Govt. Of Sind dated 5th September, 1989 whereby the appellant Mr. Ghulam Nabi Baloch was awarded minor penalty of censure. As disclosed in the memo of appeal the factual back-ground of the case is that on 29th March, 1989, the appellant, who was working as Executive Engineer, Irrigation, was served with charge-sheet listing therein as many as I6 charges. The appellant submitted his reply to the charge sheet on 9.4.1989 Thereafter a regular enquiry was held and Mr. Behram Khan Tamri who was appointed as Enquiry Officer after holding the enquiry submitted his report. On the basis of his report summary for the Minister, Irrigation and Power Department was floated by the Secretary, Irrigation and Power Department which as ultimately submitted to the Chief Minister who approved the proposal of the Secretary, Irrigation and Power Department endorsed by the Chief Secretary that minor penalty of censure be imposed upon the appellant. Accordingly by the impugned order hereinabove, the minor penalty of censure was awarded to the appellant. The appellant preferred departmental appeal which was rejected vide order dated 4th October, 1990 of the Irrigation and Power Department. Hence this appeal which has been filed on 6.11.1990.
2. We heard the arguments of Mr Abdul Sattar Mughal, on behalf of the appellant and Mr. Hayat Qureshi for the official respondents. With their assistance we also went through the relevant record.
3. Before going into merits of the case, we would like to dispose the legal objections raised by the appellant's learned counsel. His first objection was that since this was the case of enquiry, it was necessary not only to serve the appellant with final show cause notice but also to supply a copy of enquiry report. He however, complained tha^either of these .Things was done. The appellant was not even personally heard. In this connection he referred to clause (d) of the caption "grounds" of the memo bf appeal which reads as under: - "d)That the respondent No.3 has passed impugned order without issuing and supplying final show- cause notice alongwith enquiry report. As such impugned order is against the legal requirement as interpretation by the Supreme Court and is bad in the liable to be washed out."
4. On perusal of the corresponding clause of the written statement, it is found that the reply to the appellant's above grievance is couched in the following terms: d). Being a case, of minor penalty, it was not necessary to issue final show-cause notice alongwith Inquiry Report."
5. It is thus clear that neither enquiry report was supplied to the appellant nor final show cause notice was given to him. In view of this omission on the part of the departmental authorities, the learned counsel submitted that the impugned order was not sustainable. Undoubtedly his such contention finds support from the authority of the Supreme Court in the case reported as Mir Muhammad -v- N.W.F.P Government (PLD 1981 SC 176). The honourable Supreme Court was pleased to hold as under:- " It seems to us, therefore that on a proper construction of rules 5 and 6 reads together, it is a statutory requirement that if a formal inquiry is held, then the authorised officer should, after he has tentatively decided upon the action he proposes to recommend to the Authority, give an opportunity to the accused Officer to offer his explanation against the proposed action in the light of the findings of the Inquiry Officer or Inquiry Committee, before sending his recommendations to the Authority. This would, of course necessitate that a copy of the inquiry report be furnished to the accused officer at this stage, and he should be apprised the action proposed against him. ....................................................
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 the authority against the accused officer."
6. Apart from above even Mr. Hayat Qureshi, learned counsel appearing for the official respondents was constrained to concede that due to aforesaid legal lacuna the impugned order was not sustainable.
Coming to the merits of the case, it may be convenient to reproduce the impugned order dated 5.9.1989 as under:- "WHEREAS Mr. Ghulam Nabi Baloch, Executive Engineer Civil was issued Charge Sheet for certain acts of Omission and Commission, mentioned therein.
AND WHEREAS after taking into consideration his reply to the charge sheet and report of Enquiry Officer I, Muzamil H. Qureshi, Secretary to Govt, of Sind, Irrigation and Power Department as Authorised Officer am satisfied that he took undue liberty of putting in applications for grant of leave and leaving his Headquarters without waiting for prior sanction of the same by the competent authority.
NOW THEREFORE in exercise of powers conferred by Sub-Rule (4) of Rule 5 of the Sind Civil Servants (E&D) Rules 1973, Muzamil H. Qureshi, Secretary to Government of Sind, Irrigation and Power Department as Authorised Officer hereby impose minor penalty of "Censure" upon Mr. Ghulam Nabi Baloch."
7. It is clear from the above order that the appellant has been punished and awarded minor penalty of censure on the ground that he put in application for grant of leave but left his headquarter without waiting for sanction of the leave on perusal of the long list of charges contained in the charge-sheet served on the appellant, it is found that the ground of the appellant's punishment is relatable to charge No.2 which reads as under:- "2. That though there was an emergency at Pump station Babhihar you sent an application for grant of 2 days casual leave and left Head Quarter prior to its sanction."
8. However the learned counsel for the appellant invited our reference ,to page 2 of the Summary for the Minister (Chief Minister) referred to above, contending that the Enquiry Officer had cleared the appellant of the aforesaid , charge. The Enquiry Officer's findings on the charge No.2 are as under:- " Hearing about sudden death of his Nephew Mr. Ghulam Nabi Baloch Executive Engineer left his Headquarter for attending the funeral of his Nephew after submitting application for 2 days casual leave without wailing for sanction of the same. I think during such emergency, Mr. Ghulam Nabi Baloch was justified to leave the Headquarter. I absolve him of this charge."
9. On going through the above findings, we are of the view that the learned counsel's contention was not altogether without force. On the other hand the Enquiry Officer had held the appellant guilty of the charge No.13 which apparently had escaped the notice Of the departmental authorities. Again the Chief Secretary in his note dated 6.8.1989 recorded on the summary had taken serious view of the charge No.5 for which the Enquiry Officer had not recorded his clear-cut findings.
10. In view of above discussion it is difficult to uphold the impugned order, which is therefore set aside with no order as to costs. However, looking to the quantum as well as nature of the charges, levelled against the appellant, we leave it open to the departmental authorities to proceed afresh, if so desired against the appellant, in case there is enough material available to prove the charges against him strictly in accordance with the Sind Civil Servants (Efficiency and Discipline) Rules, 1973.
Given under our hands and the Seal of this Tribunal on this 28th day of October 1991 at Karachi. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.