SALEEM AKHTAR, J.---Leave was granted to consider whether the appellant was entitled to a personal hearing by respondent No, 1, the Authorised Officer and whether in refusing to summon the defence witnesses by the Enquiry Officer reasonable opportunity to defend himself was denied.
2. The brief facts are that while the appellant was posted at Sub-Postmaster, Tando Allahyar Post Office, a departmental enquiry was instituted against him on the charge of misconduct on the allegation that he got fictitious appointment in the name of Muhammad Shahid a Mail Runner and drew pay in his name on forged documents and paid to Khurshid Alam, postman, on forged signatures. It was also alleged that the appellant received from Khurshid Alam Rs,120 as his share of the fraudulently drawn salary. A show-cause notice dated 3rd January, 1983, was issued to the appellant stating the allegations of misconduct. The appellant required further time for submitting written statement but respondent No, 1 by letter dated 22nd February, 1983, informed that there was no provision to allow more than 14 days for submission of written defence which had expired. He informed that one Abdul Latif, Assistant Superintendent Post Office, Nawabshah, has been appointed Enquiry Officer and the appellant was directed to submit his written defence before him in three days of receipt of the letter. The appellant submitted his reply denying the allegations and requested for personal hearing. He further submitted the name of 4 persons to be examined as witnesses on his behalf. By a letter dated 13-4-1983 the appellant was required to produce witnesses before the Enquiry Officer on 20-4-1983 at Tando Allahyar. On 18th April, 1983, the appellant requested that one of the witnesses works in his Sub-Division and other witnesses belonged to Karachi who were also in the department. He further stated that he can produce Khurshid Alam, Postman, on the date of hearing but rest of the witnesses being officers should be summoned by him. It seems that this request was not accepted. The enquiry was held on schedule but except Khurshid Alam, Postman, no other defence witness was summoned. The department's witness was examined and Khurshid Alam who insisted on being examined on Holy Qur'an made a statement and was not cross-examined by the appellant. Thereafter a copy of the enquiry report dated 11/14th May, 1983, was furnished to the appellant under covering letter dated 18-8-1983. The appellant by letter dated 4-9-1983 requested for furnishing copies of minutes of the proceedings of enquiry, copies of statement of Mr. A. Wahab, Khurshid Alam and Usman and copy of the complaint lodged and again demanded personal hearing. These particulars were not furnished to him and, thus, he had to reply to the show-cause notice without these documents. The appellant, therefore, out of fear of ex parte order submitted his explanation on 20th September, 1985, denied the charges and stated that he was involved on account of differences with rival union of the workers of the department as in 1983 he was an office-bearer of the union. Respondent No, 1 by order dated 2-10-1985 dismissed the appellant from service. The appellant preferred departmental appeal whereupon respondent No, 2 converted penalty of dismissal from service to that of compulsory retirement with retrospective effect. The appellant then filed appeal before the Service Tribunal which was dismissed by the impugned judgment.
3. Mr. Manzoor All Khan, the learned Advocate Supreme Court for the appellant, contended that under Rules 5 and 6 of the Government Servants (Efficiency and Discipline) Rules, 1973, the appellant was entitled to a personal hearing by the authorised officer i,e, respondent No, 1.
According to the learned counsel as this opportunity has been denied principles of natural justice have been violated and he has been condemned unheard. On the other hand, Mr. Niaz Ahmed Khan, the learned Advocate Supreme Court for the respondent, has contended that once an opportunity had been given to the appellant to produce his witnesses and defend himself and the said opportunity having been availed no further opportunity or personal hearing as claimed by the appellant could be granted under law.
4. As the consideration of contentions raised by the learned counsel requires interpretation of Rules 5 and 6 of the Rules, the relevant parts are reproduced hereunder:-.
"5.
' Inquiry procedure.---(1) The following procedure shall be observed when a Government servant is proceeded against under these rules:--
(i) ..
(ii) The authorised officer shall decide whether in the light of facts of the case or the interest of justice an inquiry should be conducted through an Inquiry Committee. If he so decides, the procedure indicated in rule 6 shall apply.
(iii) ...............................................
(iv) On receipt of the report of the Inquiry Officer or Inquiry Committee, or where no such officer or Committee is appointed, on receipt of the explanation of the accused, if any, the authorised officer shall determine whether the charge has been proved. If it is proposed to impose a minor penalty he shall pass orders accordingly. If it is proposed to impose a major penalty, he shall forward the case to the authority alongwith the charge and statement of allegations served on the accused, the explanation of the accused, the findings of the Inquiry Officer or Inquiry Committee, if appointed, and his own recommendations regarding the penalty to be imposed. The authority shall pass such orders as it may deem proper.
6. Procedure to be observed by the inquiry Officer or Inquiry Committee.---Where an Inquiry Committee is appointed, the authorised officer shall--
(1) 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.
(2) Require the accused within a reasonable time, which shall not be less than seven days or more, than fourteen days from the day the 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.
(3) The Enquiry Officer or the Committee, as the case may be, shall inquire into the charge and may examine such oral documentary evidence in support of the charge or in defence of the accused as may be considered necessary and the accused shall be citied to cross- examine the witness against him.
(4) The Enquiry Officer or the Committee, as the case may be, shall inquire within ten days of the conclusion of the proceedings or such longer period as may be allowed by Authorised Officer, submit his or its findings and the grounds thereof to the authorised Officer."
(5) A perusal of both the rules will show that if the inquiry is to be conducted by an Inquiry Officer or Enquiry Committee then the procedure provided under Rule 6 has to be followed. In cases where Rule 6 is applicable the authorised officer frames the charge, communicates to the person accused, requiring him to submit his written defence, stating whether he desires to be heard in person. The Enquiry Officer then records the evidence and submits his report to the authorised officer with his finding and grounds thereof. After submission of this report the Authorised Officer acts under Rule 5(iv) and determines whether charge has been proved. He is empowered to impose minor penalties but if in his opinion the penalty imposed should be major then the matter should be referred to the Authority. The appellant had been given opportunity before the Enquiry Officer, which is also disputed by the appellant but the main grievance is that the authorised officer did not afford him a personal hearing. Insupport of his claim for personal hearing by Authorised Officer Mr. Manzoor All Khan, the learned counsel for the appellant, has referred to ESTACODE compiled and edited by Nabi Bux Khan in 1989, published for official use. While referring to Rule 5 and Rule 6 in paragraph 14 it has been stated as follows:-- "14. After the Authorised Officer has considered the inquiry report and arrived at a provisional conclusion as to the penalty to be imposed, the accused shall be supplied with a copy of the inquiry report and asked to show cause within a specified time, which should not be less than 7 days and more than 14 days for the date of receipt of inquiry report, against the particular penalty to be imposed and any representation submitted by the accused in this behalf shall be taken into consideration before final orders are passed.
15. In case the Authorised Officer has proposed imposition of a major penalty on the accused officer he has referred the case to the Authority with his recommendation and with all the documents mentioned in the Rule;
16. When the accused has desired to be heard in person, the authorised officer has duly heard him in person before deciding to impose a minor penalty or make recommendations to the authority for a major penalty: ' According to Mr. Manzoor All Khan, para. 16 explains Rule 6(2) and requires the Authorised Officer to hear the accused in person if he demands such hearing. Mr. Manzoor All Khan also referred to PLD 1981 SC 176, Syed Mir Muhammad v. N.-W.F.P. Government through Chief Secretary, where the following observation was made: "It seems to us, therefore, that on a proper construction of rules 5 and 6 read together, it is a statutory requirement that if a formal enquiry is held, then the authorised officer should, after he has tentatively decided upon the action be 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 ending 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 of the action proposed against him."
The question of affording a personal hearing at this stage if demanded by the accused should be considered from the point of view of justice, equity and propriety in departmental proceedings.
After issuing a charge-sheet, the Authorised Officer comes on the scene when enquiry report has been submitted by the Inquiry Committee or Officer. On the basis of this report the Authorised Officer has to decide whether the charge has been proved and further that whether major or minor penalty should be imposed. The Enquiry Officer is only restricted to the question of investigating into the charges, completely unconcerned with the nature of penalty which may be imposed. The Authorised Officer has, therefore, to look into the facts and circumstances of the case and then to decide the nature of penalty. This is a very crucial stage where if a person is heard there is every possibility that the decision of the Authorised Officer with regard to nature of penalty may be affected. From this point of view, and in view of para. 16 of ESTACODE the requirement of justice demands that before imposing any penalty the accused should be heard by the Authorised Officer, if demanded by him.
5. Mr. Niaz Ahmed Khan, the learned Advocate Supreme Court for the respondents, contended that as there is sufficient unrebutted evidence against the appellant no prejudice has been caused to him and, therefore, on this technical ground the judgment of the Tribunal cannot be set aside.
However, in the present case apart from the evidence that has been produced by the parties there still remains a question whether the defence evidence has been shut out. Mr. Manzoor All Khan, has contended that it is the duty of the Enquiry Officer to summon the witnesses. Rule 7 empowers the enquiry officer or Committee with the powers of a Civil Court, trying suit under Code of Civil Procedure in respect of summoning and enforcing the attendance of any person and examining him on oath, requiring the discovery and production of documents, receiving evidence on affidavits and issue commission for examination of witnesses or documents. The appellant had given names of four witnesses out of which three were officers at Karachi and one was a postman whom he had produced. He may not have been in a position to ask or compel the officers to appear before the Enquiry Officer as witnesses. Whenever any request is made to summon a witness the Enquiry Officer after considering it on its merits should decide it and may in proper cases issue summons or even issue commission for examination. In deciding such request the Enquiry Officer/Committee may consider the nature and relevancy of evidence of such witnesses.
The insistence of any Enquiry Officer to produce witnesses and referring to exercise jurisdiction under Rule 7 without any reasoning may in proper cases amount to denial of opportunity to defend the case. By his conduct the Enquiry Officer without any valid reason had completely shut out the defence witnesses and in the absence of their evidence, to come to a conclusion against the appellant cannot be justified. We, therefore, set aside the impugned judgment and allow the appeal.