1. JUSTICE (RETD.) MUNAWARALI KHAN (CHAIRMAN).--The ex- Tapedar Naimat Ali has filed this appeal to call in question the order, dated 300th October, 1991, whereby he was compulsorily retired from service. Tire impugned order was passed in the wake of the report, dated 5-3-1991 submitted by the Enquiry Officer. The Assistant Commissioner, was appointed as Enquiry Officer to hold a detailed enquiry into the allegations contained in the charge-sheet dated 2-10-1990, served on the appellant alongwith the statement of allegations. The allegations against the appellant were that during his posting as Tapedar in Rehabilitation Branch Sanghar in 1980, he committed the acts of forgery, cheating and fraud amounting to misconduct. As disclosed in the statement of allegations, four acres of evacuee land in Tapa Shahdadpur were allotted to one Rehmatullah son of Amrao in satisfaction of his claim. The appellant joined hands with certain private persons and some officials of the Revenue/Rehabilitation Department in forging bogus record showing the aforesaid allottee as dead and his allegedly grandson Ramzan as his sole surviving heir. On the basis of the said forged documents, the appellant recommended the said Ramzan's application for clearance certificate. Thereupon the then Rehabilitation Mukhtiarkar issued the requisite certificate and such entry was made in the relevant record. On re-evaluation of true facts the Assistant Commissioner, Shahdadpur cancelled the said entry and disciplinary action was initiated against the appellant. Following submission of the enquiry report, show-cause notice was issued to the appellant calling upon him to show cause why major penalty should not be inflicted on him.
2. The appellant submitted his reply, once again denying the allegations but as the same was found unsatisfactory, he was visited with major penalty of compulsory retirement. He preferred departmental appeal on 25-11-1991, which was rejected by the Chief Secretary and his order of rejection was communicated to the appellant on L5-3-1993. Thus, the present appeal was filed on 31-3-1993.
3. We heard Mr. Kazi Khalid Ali for the appellant and Mr. Abdul Latif Ansari on behalf of the official respondents. We also went through the relevant documents for disposal of the appeal.
4. The appellant's learned counsel attacked the impugned order on several grounds. His first argument was that the appellant acted in compliance with the procedure laid down in the Permanent Settlement Scheme and therefore, he was in no way responsible if the said Ramzan swore false affidavit and produced fake witnesses. He further submitted that the Enquiry Officer did not hold any sort of enquiry but chose to base his report on the material collected from the file of the ACE. We have carefully perused the enquiry report. It has no doubt only referred to the material collected from the Anti --Corruption sources, holding the appellant guilty of the charges made against him. Although it has been stated in the report that enquiry was held, there is no trace of it throughout the record. As provided in sub-Rule (2) of rule 5 of Sindh Civil Servants (Efficiency and Discipline) Rules, 1973 (hereinafter referred as the said rules), once the Authorized Officer decided that in the light of facts of the case or the interests of justice, enquiry' should be conducted through an Inquiry Officer or Inquiry Committee, the procedure indicated in . Rule 6 shall be followed. The said rule may be reproduced as under:-- "(6) Procedure to be observed by the Inquiry Officer and Inquiry Committee:--
(1) Where an Inquiry Officer or Inquiry Committee is appointed, the authorised officer shall---
(a) frame a charge and communicate it to the accused together with statement of the allegations explaining the charge and of any other relevant circumstances which are proposed to be taken into consideration;
(b) require the accused within a reasonable time, which shall not be less than seven days or more than fourteen days from the day charge has been communicated to him to put in a written defence and to state at the same time whether he desires to be heard in person;
(2) The Inquiry Officer or the Committee, as the case may be, shall enquire into the charge and may examine such oral or documentary evidence in support of the charge or in defence of the accused as may be considered necessary and the accused shall be entitled to cross-- examine the witnesses against him.
(3) The Enquiry Officer or the Committee, as the case may be, shall hear the case from day to day and no adjournment shall be given except for reason to be recorded in writing and where any adjournment is given--- (a)it shall not be for more than a week; and (b)the reasons therefore, shall be reported forthwith to the authorized officer.
5. (4)Where the Inquiry Officer or the Committee, as the case may be, is satisfied that the accused is hampering, or attempting to hamper, the progress of the enquiry he or it shall administer a warning, and if thereafter he or it is satisfied that the accused is acting in disregard of the warning, he or it shall record a finding to that effect and proceed to complete the enquiry in such manner as he or it thinks best suited to do substantial justice.
6. (5)The Inquiry Officer or the Committee, as the case may be, shall within ten days of the conclusion of the proceeding or such longer period as may be allowed by the authorized officer, submit his or its findings and the grounds thereof to the authorized officer."
7. There is nothing to show on the record that departmental enquiry ordered against the appellant was ever held in accordance with the above rule. Neither any witness was examined nor any document was produced and examined in presence of the appellant nor the latter was given opportunity to cross-examine the witnesses examined in course of the enquiry. It appears that even the statement of the appellant had not been recorded nor was he asked if he wanted to produce his witnesses nor any of his such witnesses were examined. We are convinced that no enquiry as envisaged by Rule 6 hereinabove was ever held. We fail to understand how then the Enquiry Officer recorded his findings that charges made against the appellant were proved beyond doubt.
8. Of course the appellant in his reply has admitted that in compliance of the orders of the Rehabilitation Mukhtiarkar, he took the necessary action by transcribing in the Succession Register the contents of the application and the affidavit sworn in by Ramzan who claimed to be the sole legal heir of the claimant, Rehmatullahs and so also the contents of the statements on oath of two witnesses namely Manzoor Ahmed and Muhammad Sharif who deposed before the Mukhtiarkar that the claimant Rehmatullahs had died and Ramzan was his sole surviving heir. Relying upon such statements of Ramzan and his two witnesses, the Mukhtiarkar issued the clearance certificate in favour of Ramzan. This concession on the appellant's part was not enough to saddle him with guilt of the charges of fraud etc. Unless it was further proved that he did all that deliberately with conscious mind, knowing fully well that Ramzan was not a true heir of the deceased claimant nor the witnesses supporting his legal status had spoken truth. Of course the learned Assistant Advocate-General was right in contending that the Tapedar should have been doubly careful as to the identify of the persons involved in the deal before submitting the papers before the Mukhtiarkar for his approval. It was also true that he should have insisted upon identity cards of Ramzan and witnesses as a proof of their identification. But such lapses on his part would not, in our opinion, prove him guilty of the charges. May be it was his sheer carelessness or he may have even bona fide believed them to be the genuine persons. Moreover, he was Tapedar of Rehabilitation. Wing. It was Tapedar incharge of tapa on regular side who was expected to know the Khatedars of his tapa. But no such expectation is made from the Tapedar working on rehabilitation side. In any case as required by sub-rule (4) of Rule 5 of the said rules the charges made against the appellant cannot be held to have been proved, much less beyond reasonable doubt as the Revenue Officers have observed in their reports.
9. For the above reasons we allow the appeal and set aside the impugned order. However, we consider this case to be fit to remand back to the concerned Authorized Officer who is directed to ensure that in strict compliance of the said rules, a fresh enquiry was held against the appellant and if he was proved guilty of the charges made against him, he would be punished by imposing upon him the appropriate prescribed penalty. During proceedings of the case he would continue to remain under suspension unless the competent authority otherwise decided.