RAJA BASHIR AHMAD KHAN (CHAIRMAN).---The appellant has assailed the order dated 5-1-1991 of District Health Officer, Mirpur, whereby the appellant was dismissed from service. The appellant filed an appeal before respondent No. 2 against the order of his dismissal. The appeal was still pending for decision before the Director, Health Services and it was not disposed of within a period of 90 days, therefore, the appellant invoked the jurisdiction of this Tribunal and filed the present appeal.
2.Briefly stated the facts are that the appellant joined service in the Health Department on 17-3-1981 as Water Carrier and served at various places in the District Mirpur. The appellant was suspended and charge-sheeted on 20-11-1990. The respondent No. 1 appointed Additional District Health Officer, Mirpur as Inquiry Officer on 24-11-1990. The Inquiry Officer submitted inquiry report against the appellant on 15-12-1990. In view of the inquiry report respondent No. 1 served a show-cause notice upon the appellant on 30-12-1990 and vide the impugned order the appellant was dismissed from service and effect to this order was given from 20-11-1990, the date of the suspension of the appellant.
3. The appellant has challenged the impugned order on- different grounds. It was agitated that the respondent No.1 harboured personal grievances against the appellant and was thus personally interested to remove the appellant from the service in violation of the rules on the subject. The respondents have controverted the facts alleged in the grounds of appeal and also stated in the written objections that the appeal was time-barred and liable to be dismissed on this ground.
4. We have heard the learned counsel for the parties and have thoroughly perused the record. The learned counsel for the respondents frankly admits that respondent No.1 in show-cause notice has very clearly levelled such charges which may be categorised as matters of personal grievances against the appellant and in fairness to the appellant and impartial dispensation of justice the proceedings conducted by respondent No.1 are devoid of fair play and equity and tell upon the established principle of justice that a person cannot be a judge in his own cause and further that justice must not only be done but it should appear to have been done. The perusal of the record not only reflects this aspect of the case from the show-cause notice only but from the charge- sheet dated 24-11-1990 and the order of dismissal dated 5--1-1991. We have no hesitation to accept the frank admission of the learned counsel for the respondents and on this lone ground the impugned order can be set aside. But while going through the papers and in order to appreciate as to whether the respondents had cared to observe the provisions of Efficiency and Discipline Rules, we thoroughly considered the various steps taken by the respondent No. 1- and the Inquiry Officer in the proceedings against the appellant. Respondent No. 1 issued an order under No.10487- 88/DHO/90, dated 2A-11-1990 appointing Dr. Mrs. Nasim Nazir Shah, Additional District Health officer, Mirpur as Inquiry Officer. In the same order the respondent No. 1 stated as under:- This order shows that while appointing the Inquiry Officer the District Health Officer was performing the functions of an authority under the Efficiency and Discipline Rules, 1977. Under Rule 6(5) of the said Rules, he appointed the said officer to conduct the Inquiry. By another order issued under No. 10489/DHO/90 dated 24-11-1990 the appellant was served with charge-sheet containing as many as' eight charges and the appellant was required to submit his written explanation within three days. The appellant submitted his written explanation to the charge-sheet to respondent No. 1 instead of submitting it directly to the Inquiry Officer and copies of the same were sent to the Health Minister and other senior Officers of the Department and also to Presidents of gazetted and non-gazetted employees Associations, The District Health Officer appears to have assumed double role of Authority as well as Authorised Officer which in this case was not proper and has violated the provisions of Efficiency and Discipline Rules on the point. The Authority can assume the charge of Authorised Officer under proviso to rule 2(1)(c) if in the case of a civil servant no Authorised Officer has been so authorised or designated and further if the Authority has been authorised to act as Authorised Officer. In relation to civil servants of the Health Department of the Grade 1 to 4, Government was pleased to designate District Health Officer as Authority and Civil Medical Officer as Authorised Officer under clauses (b) and (c) of rule 2 of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules 1977 vide Notification dated 17-10-1979. In view of this Notification the District Health Officer could only direct the Authorised Officer (Civil Medical Officer) to proceed against the appellant. The District Health Officer after making the opinion that there were sufficient grounds for proceeding against the appellant should have directed the Authorised Officer to proceed against the appellant. The District Health Officer instead elected to act as Authorised Officer and issued a charge-sheet to the appellant who was required to submit written reply within three days to the Inquiry Officer. This direction on the part of District Health Officer is again a violation of the rules inasmuch as that it could only be done by Authorised Officer and further that when an Inquiry Officer was appointed the Authorised Officer should simultaneously frame a charge and communicate to the accused alongwith a statement of allegations explaining the charge and other relevant facts which are proposed to be taken into consideration, The time allowed to the accused under sub-rule (6) of rule 6 for putting a written defence shall not be less than seven days or more than fourteen days. The appellant was not supplied with the statement of allegations and was also denied the opportunity of putting in his written defence within the time allowed in the above-referred rule. While going through the original record we find that the Inquiry Officer has disregarded the provisions of Rule 7 and it appears that she was completely ignorant of the provisions of the said Rule and her ignorance is clearly reflected from the inquiry report which she submitted to the District Health Officer.
5. The charges are mostly related to inefficiency, insubordination, habitual absence from duty, association with people of bad reputation and professional criminals dealing in narcotics and also conduct prejudicial to service discipline. As against the charge-sheet which runs over about two pages the Inquiry Officer submitted one-page report in which she stated that she has recorded the statements of four persons namely, Rukhsar Ahmad, Statistical Assistant, Fareed Khan, Incharge Dispensary, Muhammad Ayub, Naib-Qasid and Khadim Hussain Water Carrier. The comments made in the inquiry report are that the appellant instead of appearing before her and making a statement proceeded on medical rest from 29-11-1990 to 6-12-1990. He should have appeared on g-12-1990 but he failed to do so and at last he made his appearance on. 15-12-1990 and got recorded his statement when he was required to o so through letter No. 1926, dated 12-1.2-1990. The recommendations made by the Inquiry Officer are to the effect that Khadim Hussain, Water Carrier (appellant) failed to follow the directions to remain present before the Inquiry Officer, which shows that he is, in fact a careless person. He has levelled false charges against the District Health Officer in his written defence which was rather insulting to the Officer. It could have been better and proper for the appellant to initially admit his excess and should have requested the officer to forgive him and there was no reason for the Officer not to have accepted his request but this person was adamant in his behaviour. The element of stubbornness, levelling of false charge, carelessness is present in his written defence. Three persons have made statements against him and he has denied those statements. She is personally convinced that the witnesses are thorough gentlemen.
While concluding the inquiry report she remarks that this Government servant in fact is guilty of charges. In order to make him careful in future it is necessary that some or the other punishment may be proposed again him and it is up to the District Health Officer as to what punishment should be awarded to this person. The Inquiry Officer is required under rule 7 of Efficiency and Discipline Rules to inquire into the charge and examine oral as well as documentary evidence in support of the charge or in defence of the accused. The absence of the accused may be deemed under sub- rule (5) of Rule 7 as an attempt to-hamper-the progress of the inquiry but it cannot be made a basis for holding that the civil servant is guilty of misconduct. The Inquiry Officer was duty bound to examine evidence both in support of the charges and in their defence and then submit her findings on each charge separately. The inquiry report when viewed in this prospective appears that it is not even worth the paper on which it has been written.
6. In the light of the discussion of the case we have given our deep considerations on the point whether the case be remanded for fresh inquiry. The appellant is a Water Carrier, an employee of Grade B-1, has already undergone the ordeals of a departmental inquiry. He remained out of service for a period of more that two years and thus had to face the agony of dismissal from service. We, therefore, do not feel advised to remand the case for fresh inquiry.
7. In the present case the order of the District Health Officer dismissing the appellant from service is clearly vitiated both on facts and law. The appeal is accordingly 'allowed. The impugned order is set aside. The appellant is ordered to be reinstated onto his post w.e.f. The date he was dismissed with all the consequential benefits.