JUDGMENT MUHAMMAD NASEEM CHAUDHARI, J.- Muhammad Ismail plaintiff since deceased at present represented by his legal representatives i.e. Respondents was recruited as a Junior Clerk in the office of the Commissioner. Multan Division. Multan/petitioner No. 2-defendant No. 2. He rose to the post of Assistant in the same office. Oh 27-1-1961 the Deputy Commissioner Multan vide- his endorsement No.. 107-M/LFC. Dated 27-1- ,1961 to the address of the Commissioner, Multan Division.
Multan recommended to write off ah amount of Rs. 3.177 and 8 Annas by the Town Committee Jhanian ^District Multan fat present District Khanewal) on account of over payment made to Qazi Hafeez. Ullah Second Headmaster N.A.C. High School Jahaninan. The matter was dealt with by Muhammad Ismail in the Basic Democracies Branch. The order in the matter was issued and the Deputy Commissioner Multan was intimated vide Office Memorandum No BD-41-14/60, dated 22-3-1961 sent by the Commissioner Multan Division. Multan. However, it transpired that the case was not submitted by Muhammad Ismail to the Assistant Commissioner (Development) for obtaining the proper order in the matter ancl he managed somehow to obtain the signatures of the office Superintendent in routine on the aforesaid letter dated 22-3-1961. The Assistant Commissioner (Development) requisitioned the file which was stated to be missing. However, afterwards the file was found but Muhammad Ismail is alleged to have fraudulently prayed by tearing his initials on a small portion.
Thereafter the relevant file could not be traced again. A preliminary.Inquiry was held by the Additional Commissioner (Revenue) Multan at the direction of the Commissioner, Multan Division, Multan who recommended for initiating the full-fledged inquiry. Thereafter the petitioner was served with the charge- sheet .And statement of allegations alongwith list of the documents and the list of witnesses. It would be proper to express at this stage that all these documents are not dated. The full-fledged inquiry was held under the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960 by the Additional Commissioner (Revenue) Multan Division, Multan who recorded the statements of the witnesses-. He recommended for the removal of Muhammad Ismail from service. A Show-Cause Notice bearing no date was sent to Muhammad Ismail.
Muhammad Ismail submitted his explanation. Vide order dated 15-1-1962 Mr. B.A. Kureshi, Commissioner Multan Division, Multan held Muhammad Ismail guilty and passed the following operative order: "The charges stand fully proved. Muhammad Ismail has not brought out any circumstance or evidence to mitigate his offence.
He has been guilty of trying to cheat the Officers and defraud the ' Administration. His retention in service would not be in the public interest. 1, therefore, order that Muhammad Ismail should be removed from service with immediate effect".
2. Feeling aggrieved Muhammad Ismail preferred an appeal which >vas. Dismissed by Mr. Hassan Tarrab Ali Member (Revenue), Board of Revenue West Pakistan on 1-5-1869 after expressing his concurrence with ' the decision passed by the Commissioner, Multan Division, Multan. On 1-9- 1970, during his life-time, Muhammad Isma il plaintiff since deceased at present represented by his legal representatives arrayed in the list of respondents in this Regular Second Appeal impugned the vires of order dated | 15-1-1962 passed by the Commissioner Multan Division, Multan and affirmed by the Member (Revenue), Board of Revenue West Pakistan, Lahore on 1-5-1969 to obtain a declaration to the effect that the aforesaid orders are wrong, arbitrary, unjust, illegal, ultra-vires and inoperative as 1 against his rights for the following reasons:
(i) The charge-sheet furnished to the plaintiff (Muhammad Ismail) was merely counter-signed by the Assistant Commissioner (General) and was not signed by the competent-authority.
(ii) The charge-sheet did not bear the date of issuance. ,
(iii) . The list of prosecution witnesses furnished to him made rno mention of Muhammad Abdullah P.W. And the gist of his- evidence to be made in the inquiry was not supplied.
(iv) The departmental inquiry was finished on 8-11-1961 and then again he (plaintiff) was summoned by a telephonic message on IIII-1961 to attend the supplementary inquiry reopened and concluded on the same date.
(v) The report of the Inquiry Officer was submitted on 2-12-1961 i.e. 21 days after the same was concluded.
(vi) No opportunity was afforded to the plaintiff of being heard in person against the Show Cause Notice.
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(vii) The allegations against him (plaintiff) were unfounded and were attributable strictly to the then Superintendent of the office of the Commissioner, Multan Division, Multan.
3. As a consequential relief Muhammad Ismail prayed for the proposed relief to the effect that he continued to be the Assistant in the office of the Commissioner, Multan Division, Multan as ever before and is entitled to his salary, allowances and all other privileges attached to his office. The suit was instituted against the Punjab Province through the Collector Multan District who contested the same and in the written statement refuted the averments made by Muhammad Ismail in his plaint by expressing that the impugned order were factually and legally justified and correct.
4. According to the pleadings of the parties following issues were framed for determination by the learned trial Court:
(1) Whether, the impugned orders passed by the Commissioner and the Member, Board of Revenue are illegal, wrong and without jurisdiction? OPP.
(2) Relief.
5. Naseer-ud-Din (P.W.1), Atta Muhammad (P.W, 2) and Muhammad Ismail plaintiff (P.W. 3) appeared in the witness-box in support of his assertions. The defendant produced Muhammad Saleem Shah, Accountant Commissioner's Office, Multan as DW.
1 as well as the documentary evidence comprising letters.Exs.D1 to D3, a certified copy of the Inquiry Report as Ex.D4, a certified copy of the statement of the plaintiff as Ex. D5, a certified copy of the charge-sheet as Ex.D6, a certified copy of show- cause notice as Ex.D7, a certified copy of receipt of charge-sheet as Ex.D8 and a certified copy of the final order passed by the Commissioner, Multan Division, Multan as Ex.D9. After hearing the parties the learned trial Court held that the competent authority/Commissioner, Multan Division, Multan did not sign the charge-sheet supplied to the plaintiff which did not bear any date, that the record as produced by the parties has made out that the plaintiff was not allowed to cross-examine the P.Ws namely Karam Elahi, S.M. Sajid, Munir Ahmad and Rao Jamshed Ali and that Muhammad Ismail was not heard personally before passing the impugned order dated 15-1- 1962. Consequently the suit was decreed on 23-7-1980. The appeal was preferred by the Commissioner, Multan Division, Multan and the Punjab Province through the Collectpr Multan District on 9-10-1980 against Muhammad Ismail plaintiff/decree-holder.
Muhammad Ismail did during the pendency of the appeal and his legal representatives were impleaded vide order dated 3-5- 1981 by the learned Additional District Judge, Multan. The learned lower Appellate Court agreed with the findings of the learned trial Court and dismissed the appeal on 30-5-1981. Feeling aggrieved both the aforesaid appellants have preferred this Regular Second Appeal No. 92 on 30- 8-1981 which has been resisted by all the respondents as the legal- hei# |of Muhammad Ismail plaintiff/decree-holder.
6. The first assertion of the learned counsel for the appellants is that the suit stood abated in view of Section 8 of the Punjab Administrative Tribunal Act, 1974 (Act No. IX of 1974). Published as PLD 1974 Punjab Statutes 182, whereby it has specifically been provided that all suits, appeals and applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the establishment of the appropriate Tribunal shall abate on the establishment of such Tribunal: provided that any party to such a suit, appeal and application may within 90 days of establishment of the appropriate Tribunal, prefer an appeal to it in respect of any such matter which is in issue in such suit, appeal or application. I do not agree with him. As rightly pointed out by the learned counsel for the respondents by making a reference to proviso 'c' to Section 4 of the Punjab Administrative Art, 1974 "no appeal shall lie to a Tribunal against an order or decision of a Departmental Authority made at any time before the lst July, ' ~>69. In the Explanation to the aforesaid provision it has specifically been prov. Led that in this section "Departmental Authority" means any Authority7 other than a Tribunal which is competent to make an order in respect of any of the terms and conditions of Civil Servant. The admitted facts are that the Commissioner, Multan Division, Multan passed the impugned order on 15-1-1962 and the learned Member, Board of Revenue West Pakistan, Lahore dismissed the appeal vide the impugned order dated 1-5-1969.
Since both the aforesaid impugned orders were passed before 1-7-1969 the appeal was not competent before the Administrative Tribunal and the suit did not abate which could proceed and has rightly been heard and disposed of on merits. On the basis of the same reasoning the appeal cofdd be decided by the District Court and now the Regular Second Appeal under disposal has to be heard on merits and disposed of by this Court.
7. On merits learned counsel for the appellants laid the emphasis that the dispute has not been disposed of in the time perspective. Even though the charge-sheet and the statement of allegations Rave not been signed and dated by the Commissioner, Multan Division, Multan that is not an irregularity' so as to be fatal to the existence and operation of the t.C.715 impugned orders especially when show cause notice was issued to Muhammad Ismail. He asserted that the ground that Muhammad Ismail plaintiff was not allowed to cross-examine the witnesses produced during the inquiry was not, allowed to be cross-examined has not been taken up in the plaint and this aspect of the matter is not enough to declare the impugned orders as illegal, unjust, ultra vires and inoperative. He, however, conceded that during the inquiry the Inquiry Officer has not. Mentioned in the statements of the witnesses produced against Muhammad Ismail that they were cross-examined or/and the opportunity in the matter was granted to Muhammad Ismail who did not avail the same. On the contrary learned counsel for the respondents argued that the dispute has been properly disposed of by the lower Courts whose concurrent findings are not liable to be interfered with. I am of the view that even if the charge-sheet and the statement of allegations have not been signed by the Commissioner, Multan Division, Multan and have not been dated that is not fatal to the culmination of the inquiry in any manner. The important aspect of the matter which has stolen the eminence in this regard is that it is the admitted fact that Muhammad Ismail joined the inquiiy and defended himself. The show-cause notice was also served upon him by the Commissioner, Multan Division, Multan. It- cannot be expected that he was not personally heard. The aforesaid objections/averments made by Muhammad Ismail with respect to the conclusion of the fall-fledged inquiry are not fatal to its being operative. However, it is the admitted position that the witnesses produced during the inquiry against Muhammad Ismail were not cross- examined by him as the record in the matter is silent and There is no material to make out that any opportunity was granted to Muhammad Ismail to cross-examine the witnesses being produced against him hut he did not avail the opportunity'. I am tempted to express the view that the statement of any witness against any accused recorded in the presence of the accused has no force unless the opportunity is allowed to the accused to cross-examine the witnesses appearing against him. At least the record must show that the opportunity w'as granted to the accused in the matter and the same was not availed. In this regard it is a matter of importance and convenience to reproduce as under Rule 10 Chapter 1-E, Lahore High Court Rules and Orders Volume-
10. Care should be taken to distinguish the cross-examination and re-examination of witnesses by a note in the margin. If a witness is not cross-examined the record should show that the accused did not wish to do so".
8. It shall not be out of place to express that in the judicial hierarchy the veracity of a witness can well be tested by the use of the weapon of cross- examinajion. Without that the statement of any witness cannot be used against an accused. This being the position the statements cf witnesses who appeared against Muhammad Ismail during the Departmental Inquiry cannot be^giyen the legal weight. According to Rule 6(iv)(c) of the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960 published as PLD 1960 West Pakistan Statutes 273 which was applicable to the case of Muhammad Ismail at the relevant time if the accused so desired or if the authority7 so directed an oral inquiiy could be made by an Inquiry Officer to be appointed under Rule 8 at which oral evidence shall be heard as to such of the allegations as are not admitted and the accused shall be entitled to cross-examine the witnesses against him.................... The same principle shall be applicable with respect to the statements of the witnesses recorded against an accused in writing by the Inquiry Officer. Consequently I hold that the statements of the witnesses examined against Muhammad Ismail during the Departmental Inquiry could not be used against him and it is held that the witnesses produced during the inquiiy have not established the guilt of Muhammad Ismail. At this stage, keeping in 'iew my on. Experience havirig attained the present high-pedestal through service, I have to express that to save officials/Officers having the better status in the office, the members of the lower staff have to face such situation and go through the ordeal which fell to the fate of Muhammad Ismail during his service. The letter 'wherein the liability of the relevant amount was written off was signed by the Superintendent of the Office of the Commissioner, Multan Division, Multan. It was the legal duty of the said Superintendent to sign the same after taking all the precautions and if he had signed the same he could not take a contrary stand by putting the burden on the shoulders of Muhammad Ismail with whom can sympathise during the month of December, 1996 While he unfortunately expired on 22nd January, 1981. The only irresistible conclusion which can be drawn from the aforesaid state of affairs, analysis of evidence and discussion would be that the concurrent findings of both the learned lower Courts are legally justified and no exception can be taken thereto which are sustained.
9. For what has been said above, I see no merit in this Appeal and dismiss the same with costs.
Special Note:'
In view of the dismissal of this Regular Second Appeal and the pangs suffered by Muhammad Ismail who breathed his last on 22-1-1981,1 pass the ordel- of the payment of salary, allowances, giant of promotion alongwith [Vot.XVI #tbs C.C.717 #to other colleagues without any adverse view and all other privileges attached to his office from 15 1- 1962 till his death. After his death if any legal allowance and privilege is available to his widow and other family-.'members the same shall also be provided to them. This order shall be executed by the Commissioner, Multan Division, Multan within a period of ninety days and he would supervise the working of the District Accounts Officer as well. This is simply an unfortunate case and without being sentimental, it is held that the widow of Muhammad Isamil is entitled to the sympathetic treatment by all concerned including this Court.