AJMAL MIAN, J.---By this common judgment, we intend to dispose of the above two appeals which have been filed with the leave of this Court against the judgments dated 30-9-1992 and 31- 10-1992 passed by the Federal Service Tribunal, Islamabad, hereinafter referred to as the Tribunal, in Appeals Nos. 231(R)/92 (Old Appeal No. 73(L)/91) and 230(R)/92, respectively, filed by the appellants against the order of compulsory retirement dated 10-1-1991 and dismissal order dated 20-3-1991, respectively, dismissing the above Appeal No. 231(R)/92 and partly allowing Appeal No.230(R)/92, by substituting the punishment of dismissal by compulsory retirement.
2. Leave to appeal was granted in the above two appeals by a common order to consider, whether the major punishment of compulsory retirement of the appellants from service could be awarded without holding any enquiry under the law.
Civil Appeal No. 312 of 1993
3. The brief facts are that the appellant was serving as a Chairman, ITD Directorate, when he was served with the charge-sheet under the Government Servants (Efficiency and Discipline) Rules, 1973, hereinafter referred to as the Rules, containing the following charge of misconduct alongwith the statement of allegations:-- "CHARGE; MISCONDUCT -- VIOLATION OF CHANNEL
(a) In that he submitted an application direct to CJAS & C whereas he was serving in ITD Dte GHQ and thus have violated the channel of submission laid down in SPAO 3/70.
(b) He used objectionable language of being sarcastic and abusive within the provisions of para. 7 of SPAO 3/70 and made certain allegation to a senior officer in a tauntinng manner which amounts to misconduct and is uncongenial to the unit discipline.
(c) He was granted three days casual leave from 4 August to 6th August, 1990 thereafter he absented from duty without permission from 7 to 10 August, 1990 and again from 15 August, 1990 todate."
Since the appellant had not submitted any reply to the above charge-sheet, he was served with a show-cause notice dated 21-9-1990 calling upon him to show cause in writing within 10 days of the receipt of the above show-cause notice as to why he should not be dismissed from service on the above charge of misconduct. The above show-cause notice was responded to by the appellant by his letter dated 1-10-1990, in which he did not controvert the allegations but stated as under:-- "Most humbly if is submitted that by an individual having no links/relations with authorities at decisive bargaining positions in Government departments, if demand of Pay and Allowances and request for sanction of EOL without pay for regularisation of service, to support school going children, to voice against unfair displacement and to speak truth about the prevailing circumstances there at IAS & C as mentioned in my personal letter to Col. Amanullah Khan, is an, Offence, then I do admit the same and with a view of persistent injustice at all levels for a helpless man like me, apologize will be careful in future."
After that, the appellant was served with a second show-cause notice dated 17-11-1990. In response whereof, he sent his letter dated 21-11-1990, in which he alleged that he had not received the charge-sheet dated 22-10-1990 for the reason that he had changed his house. After that, the appellant was retired from service by the above order dated 10-1-1991. He filed the above service appeal without any success. Thereupon, he filed a petition for leave to appeal, which was granted to consider the above question.
Civil Anneal No. 313 of 1993 3.The appellant, at the relevant time, was serving as an Assistant Foreman in IAS & C at Karachi when he .Was served with a charge-sheet dated 12-1-1991 alongwith the statement of allegation containing the following charges: ---Charge MISCONDUCT --- VIOLATION OF CHANNEL (IST CHARGE)--- In that he violated normal channel of command by sending an application directly to DITD on 22 Dec. 90 regarding his posting from IAS & C Karachi to ASID Lahore despite the fact that he was advised by Mr. Agha Muhammad Aslam, Research Officer, Gde-I OIC SOC Wing to submit his application for posting to ASID, Lahore.
MISCONDUCT USING OF HIGHLY INSOLENT AND DEROGATORY LANGUAGE AGAINST CHIEF INSPECTOR (2ND CHARGE.
In that he used highly insolent and derogatory language in his application dated 22 Dec. 90 against Chief Inspector, IAS & C, Karachi.
The above charge-sheet was responded to by the appellant through his letter dated 15-1-1991, in which he again used derogatory language. After that, he was served with a show-cause notice dated 30-1-1991 stating therein that the explanation submitted by him to the charge-sheet was found not satisfactory. He was called upon to show cause within 10 days of the receipt of the above show-cause notice as to why he should not be dismissed from service. The appellant replied to the above show cause notice through his letter dated 8-2-1991 running into 14 pages. In response to the above reply, the appellant was served with the above notice dated 21-2-1991, whereby he was dismissed from service on the ground that his explanation was found not satisfactory by the competent authority. Thereupon, -the appellant filed the above service appeal without any success and then a petition for leave to appeal, which was granted to consider the above question.
4. In support of the above appeals, Mr. Imtiaz Muhammad Khan, learned counsel appearing for the appellants, has vehemently contended that since the punishments of compulsory retirement and dismissal from service were major punishments, the same could not have been imposed upon the appellants without holding a regular enquiry. Reliance was placed by him on the case of Nasir Said v. WAPDA through its Chairman and another (PLD 1987 SC 421), wherein this Court allowed the appeal of an employee of WAPDA on the ground that the order of retirement was passed against the appellant not by the Authority under the WAPDA Employees (Retirement) Rules, 1979, but was passed by the Appointing Authority which was different.
The above case has no application to the controversy in issue. The learned counsel for the appellants is unable to cite any law or rule or authority of any superior Court in support of his above contention. In our view, the above contention is devoid of any force. The question, whether any major punishment can be imposed upon a civil servant without holding an enquiry, depends on the facts of each case. Clause (iii) of sub-rule (1) of Rule 5 of the Rules empowers the Authorised Officer to dispense with the enquiry but he is required (by an order in writing) to inform the accused of the action proposed to be taken in regard to him and the grounds of action and to give him a reasonable opportunity of showing cause against the proposed action.
6. Mr. Mumtaz Ali Mirza, learned Deputy Attorney-General, has referred to the following cases in support of his submission that in the case in hand since the charges of misconduct against the appellants were founded on the admitted facts, there was no need of holding any formal enquiry.
(i)The Deputy Inspector-General of Police Lahore and others v Anis ur-Rehman Khan (PLD 1985 SC 134) wherein this Court allowed the appeal of the Police Department against the judgment of the Punjab Service Tribunal and dilated upon the question of dispensing with holding of enquiry as follows:-- "A discretion has, therefore, been coferred on the competent authority to decide whether a departmental inquiry through an Inquiry Officer is not necessary. The exercise of this discretion is not controlled by any pre-requisite or guidelines. All the same as held by the Tribunal, it should appear ex facie from the record to have been resorted to fairly and justly and not oppressively and perversely. In the case in hand there was ample justification for dispensing with the inquiry through an Inquiry Officer. A superior officer of the appellants had conducted the raid in the company of another functionary of the Martial Law Headquarters. The things appearing before the superior officer itself established that there was laxity in observing the discipline and there was breach of it.
On the facts, therefore, where a superior who has even otherwise the authority to control and supervise the functioning of his subordinates conducted such a raid, the results whereof were accepted by the appellants themselves, the resort to the show-cause procedure without appointing any Inquiry Officer cannot on any principle be objected to as abuse of the discretion or unjustified in law."
(ii) Muhammad Saleem Akhtar v. The Director. Food Punjab Lahore and another (1987 SCM R 8291; In the above case this Court, while declining leave to appeal against the judgment of the Punjab Service Tribual, repelled somewhat similar contention which has been urged by Mr. Imtiaz Muhammad Khan as under:-- "3. It is contended on behalf of the petitioner that as in his case no regular inquiry was held the imposition of major penalty upon him was illegal. We find little merit in this contention. It is to be noticed that under rule 6(3) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1973, the authorised officer was competent to dispense with a regular inquiry. In this particular case, the proof against the petitioner was entirely of a documentary nature. It may also be mentioned that in his appeal before the Director he had made no grievance of the fact that no regular inquiry was held in his case or that he had been in any manner prejudiced in his defence in the absence of a regular inquiry. Similarly in his reply to the show-cause notice he did not ask for a regular inquiry.
No substantial question of law of public importance arises in this petition. It is hereby dismissed."
7. Reference may also be made to the following cases:--
(i) Deputy Postmaster General (PS), Metropolitan Circle, Karachi and 2 others (1990 SCM R 347); in which this Court, while allowing the appeal of the Deputy Postmaster-- General against the judgment of the Federal Service Tribunal, has dilated upon the question of dispensing with holding of a regular enquiry with reference to Rule 5 of the Rules as follows:-- "13. As regards the second question on which leave to appeal has been granted, there was indeed a proposal that a regular enquiry through Enquiry Officer should be held in the case. The Authority, however, took a different view and without expressly recording an order for the appointment of an Enquiry Committee or an Enquiry Officer, approved the charge-sheet when it was subsequently put up before him. The charge-sheet was in the form of a show-cause notice enumerating the charges, the material on which it was based and the extent to which the respondent was involved.
The shorter procedure of a show-cause notice was adopted by serving such a charge-sheet and this was a substantial compliance with the requirements of Rule 5 of the Efficiency and Discipline Rules, 1973. The respondent had no vested right in the procedure and the competent authority could decide on the material which was before it and adopt the shorter procedure, which it did. No legal defect can for either of the reasons be attributed to it."
(ii) Alamgir v Divisional Forest Officer Multan and others (1993 SCM R 603)
In the above case, this Court allowed the appeal of a civil servant working in the Forest Department on the ground that no full-fledged enquiry was held though it was necessary for resolving controverted questions of fact. Evidence was required to be recorded and opportunity of cross- examination was to he given.
(iii) Government of Sindh and others v. Saiful Haq Hashmi and others (1993 SCM R 956); in which the majority view on the controversy in issue is as follows:-- "Rule 5(3) confers a discretion in the `authorised officer' to decide whether inquiry should be conducted through inquiry officer/inquiry committee or not. It is not necessary that he may pass any order or issue any notice for deciding such aspect of the case. He has to take such decision after examining the facts and the records of the case. The fact that a notice under Rule 5(3) had been issued speaks of itself that the `authorised officer' had decided to invoke this provision and not to appoint any inquiry officer or inquiry committee. The facts of the case as involved entirely depended upon the documents of the suit and the execution proceeding. In the lengthy reply submitted by the respondent reference has been made to the entire record and copies of many relevant, documents were also submitted. This shows that he had access to the documents and was actually in possession of the same. Further, he was personally heard by the `authorised officer'.
The respondent at no stage seems to have claimed that he would produce witness in his defence.
He had asked for personal hearing which was duly afforded. The nature of proof required depends upon the facts and circumstances of each case. In every case it is not necessary to produce oral evidence. Cases which are clearly dependent on documents alone on which both the parties rely, hardly require any oral evidence unless shown to be needed by any party. There were no disputed questions of fact with regard to pleadings of the parties, applications and the orders passed by the respondent. Only assessm ent of the record was to be made by the `authorised officer' before deciding the course of action. In such cases depending on facts, if inquiry officer or inquiry committee is not appointed it would not amount to illegality."
(iv) Javid Akhtar v. Secretary. Ministry of Interior. Government of Pakistan, Islamabad and others (1 SCMR 140); 1n the above case, it was held that a civil servant could not have a choice nor could he insist that a particular procedure for holding a disciplinary proceeding should be followed,
8. The ratio of the above cases seems to be that under Rule 5(1)(iii) of the Rules, an authorised officer has discretion to decide, whether in a disciplinary proceeding against a civil servant in response to his reply to the charge-sheet, a regular inquiry should be held or not. The above discretion is not controlled by any precondition or guideline but nevertheless this discretion Re all other discretions is to be exercised fairly and reasonably and not arbitrarily or capriciously with the object to deny the civil servant the right of fair defence. So if the charge is founded on admitted documents/facts, no full fledged inquiry is required but if the charge is based on disputed questions of fact, a civil servant cannot be denied a regular inquiry, as the same cannot be resolved without recording evidence and providing opportunity to the parties to cross-examine the witnesses. In such a matter if findings of fact are recorded without recording any evidence, the same will be based on surmises and conjectures, which will have no evidentiary value as to warrant imposition of any punishment on the civil servant concerned.
9. In the instant cases, the appellants had admitted that they had addressed their letters to higher authorities by by-passing the normal channel. The contents of their letters also indicate that they have used highly insolent and derogatory language against their officers. The appellant in Civil Appeal No. 313 of 1993, Abdul Hafeez, instead of repenting over his above conduct, repeated the same objectionable language in his replies to the charge-sheet and the show-cause notices. In our view, no factual controversy of the nature was involved which warranted holding of a regular enquiry for recording evidence. The appellants were informed by, the `authorised officer' after receipt of their replies to the above charge-sheets/show-cause notices of the action which he proposed to take against them. In this view of the matter, there has been substantial compliance of clause (iii) of sub-rule (1) of Rule 5 of the Rules. The appeals have no merits and the same are, accordingly, dismissed.
However, there will be no order as to costs.