CH. HASSAN NAWAZ (MEMBER). The question for examination in this appeal is in respect of the validity or otherwise of order of dismissal from service dated 4.4.1993, passed in consequence of proceedings under the Government Servants (Efficiency and Discipline) Rules, 1973 against the appellant who was in service as Inspector of Income Tax at the relevant the.
2. Facts in the background of impugned order are material for a proper appreciation of the points involved for determination. The matter started with the institution of Writ Petition No. 5192 of 1990, filed by M/s. Shawar Waseef Chaudhry and Muhammad Aslam who were employees of the income Tax Department at Gujranwala respectively as Upper Division Clerk and Daftri. The first claimed himself as General Secretary whereas the latter as Member of the Insaf Group of Income Tax Employees Association of Grades-1 to 15 in the Department. The Commissioner of Income Tax, Gujranwala Zone, Gujranwala and the Secretary (DTA), Central Board of Revenue, Islamabad were impleaded as respondents Nos. 1 and 2 respectively Mr. Ehsan Muhammad Bokhari, Inspector, Income Tax was impleaded as respondent No. 3 in his capacity as President of the Association.
3. This Association came into existence on establishment of Gujranwala Zone of the Department. Its office-bearers were nominated by the non-gazetted employees (Grades-1 to 15) of the Department on 25.7.1989, respondent No. 3 who had been nominated as President of the Association announced a Schedule of General Elections of the Association and fixed 7.8.1989 as date for the purpose. Subsequently, after the nomination papers had been filed, the President postponed the elections on the plea that Class-IV employees were neither eligible to vote nor could they contest election for any office. The elections were put of and it was declared by the President that the office-bearers already nominated would continue to work till the expiry of two years term with effect from 20.3.1989.
4. In the writ petition, the petitioner sought a declaration to the effect that the at -of respondent No. 3 debarring Class-IV members of the said Association from contesting its elections is without lawful authority. Another relief sought was for issuance of a direction to him to allow all Members of the Association to participate and vote in the elections.
5. Relevant portion of the High Court's Order passed on this writ on 1.4.1991, makes the following reading: Thus it is obvious that due to the abolition of various classes of civil ^servants, the association known as Income Tax Employees Association (Class-Ill) as such does not exist and its existence is against law. This being so, the petitioners, one of whom belongs the former Class-Ill and the other to Class-IV, cannot claim themselves to be the members of that association having right to vote or contest election for its offices as the association itself does not exist by virtue of provisions of rule 6 of the aforesaid 1973 Rules which had abolished all classes and classification of services or posts as gazetted and non-gazetted. Employes of Income. Tax Department, however, can now form service associations with reference only to the grades, either jointly or severally in consonance with the provisions of rule 28 of Government Servants (Conduct) Rules, 1964, if they so like."
6. It may here be mentioned as a relevant fact that after this judgment, on 18.7.1991 Second Secretary of the Central Board of Revenue addressed a letter to the Regional Commissioners of various Zones, containing the following observations: "According to the judgment of the Lahore High Court, election for 19.8.1991, in view of the adamant attitude of the office-bearers, the Regional Commissioner of Income Tax on 13.8.1991 held separate meetings with the two groups contesting the election one led by Mr. Abid Umar and the other by M/s. Shahid Baig and Javed Saeed Siddiqui and suggested the following -course of action to both of them:-
(a) To enable RICT office and the Zonal Commissioners to permit holding of elections on 19th August the directions issued by CBR may be got modified either through a letter from CBR, under whose direct control the Income- Tax Department operates, or through a Court order indicating that the Income Tax Department is interpreting the decision of Honourable Lahore High Court in an incorrect manner. Unless this is done the RCIT and the officers working under him will be held responsible for contempt of directions issued by CBR and the Honourable Lahore High Court.
(b) As the exercise given in (a) above will take sometime the elections may be postponed.(c) The elections may be held as soon as the employees desire; but after the formalities in respect of (a) above are completed.
Mr. Muhammad Nazir Rizvi and other office-bearers of the defunct Association paid least, respect to the above suggestions of the Regional Commissioner of Income Tax and decided to continue with the Schedule already announced of an employees association is against the conduct of Government servants prescribed by the Government of Pakistan. If any person forces the employees to participate in such illegal conduct or himself participate in it, strict disciplinary action may be taken against him."
9. Regardless of the Department's view of the legal position and the afore-mentioned instructions, however, election of the office-bearers of the Association (Grades 3 to 15) was held on 19.8.1991. The Secretary (DTA) of the Board was informed of this fact through letter dated 20.8.1991 by the Commissioner of Income Tax Lahore. The appellant also informed the Regional Commissioner of Income-tax by letter dated 4.9.1991 that he had been elected as President of the Association on 19.8.1991. The names of other office-bearers were also communicated.
10. It was in the context of these facts that disciplinary proceedings were set going against the appellant with the service of show-cause notice dated 21.9.1991 which contained the following allegations:"(i)You organized and participated in the elections of defunct/illegal Association namely "Income Tax Employees Association, Class-Ill Lahore' held on 19.8.1991 in violation of the Government Rules on the. Subject.
(ii) You defied the instructions of the RCIT Central Region, Lahore contained in his Lptter No. RCIT/2(29) 511/Admn., dated 17.8.1991 prohibiting you from any activity in connection with the elections for the said defunct association.
(iii) You engaged in the election campaign during the office hours in theoffice premises and thus caused the Government work suspended for days together.(iv) You also celebrated your victory during office hours in the officepremises thus interfering in the smooth work of the office.(v) While conducting campaign in the elections you conducted yourself in a manner un-becoming of a public servant, raised slogans in the office corridors thereby obstructing the performance of Government duties.(vi) You spent considerable amount of money on the printing of posters,hand bill etc. In support of your election campaign which is not explainable from vour ostensible means.
(vii) You unauthorizedly arranged/organised a musical show without prior permission of the competent Authority."
11. The record bears out that after the appellant had submitted an explanation in writing to the show-cause notice on 21.9.1991, he was given an opportunity of personal hearing by the Authorized Officer which he does not appear to have availed. After taking his explanation and relevant material into consideration, the Authorized Officer recommended on 26.12.1992 that he may be dismissed from service on the ground that he was found guilty of "serious offences like in subordination, disobedience and misconduct which he committed wilfully and in open defiance.
This was followed by the impugned order of dismissal.
12. A reference may also be made, with advantage, to the developments subsequent to the service of show-cause notice which have got a bearing on the question involved for decision. Feeling aggrieved by the High Court's Order dated 1.4.1991, the Income Tax Employees Association (Class- Ill) filed a Petition (No. 83 of 1991) for its review. Similar Review Petition (No. 84 of 1991) was filed by the Employees Association of Gujranwala Zone. The third (No. 85 of 1991) was brought by Income Tax Servants Association Regd: (Class-IV), Lahore. Another Association with the name and style of Income Tax Employees Association (Grades-3 to 15) a duly recognized Association of Central Government Employees brought Writ Petition No. 588 of 1992 raising identical questions. They were all taken-up together, and disposed of by judgment dated 28.11.1992.
13. The following questions were formulated by the Court for decision:
(1) Whether the old service associations of Class-Ill and Class-IV employees of Income Tax Department still exist and if so, whether they are to function under their old nomenclature or they are to function with reference to their corresponding grades/basic scales and what are those grades/basic scales?(2) If aforesaid service associations by virtue of the 1973 Rules have ceased to exist, whether they require fresh registration/recognition by the concerned authorities with reference to their corresponding grades/basic scales now in vogue?
14. Question No. 1 was answered in the affirmative, but "to the extent indicated in paragraphs Nos. 14 and 15 "whereas question No. 2 was answered in the negative. Order dated 1.4.1991 passed in Writ Petition No. 5192 of 1990 was modified to the afore-mentioned extent on acceptance of the review petitions, with the clarification that membership of first two associations shall remain confined to the employees of BPS-3 to 10 and that of the third only to those of BPS-1 and 2 serving in the Department.
15. Before an address is made to the main point, a few words about the respondent's pleadings in the written statement filed on 4.11.1993, after the High Court's judgment dated 28.11.1992 which accepted Review Petitions Nos. 83, 84 and 85 of 1991 and modified its order of 1.4.1991. The High Court's judgment was clearly suggestive of the fact that its order dated 1.4.1991 no longer held the field. Despite this, however, it was pleaded by the respondents that "the decision of Honourable Lahore High Court dated 1.4.1991 in Writ Petition No. 5192 of 1990 is fully applicable to the Association of Lahore and reliance was correctly placed on that judgment. These pleadings implied that the Department's approach to the matter was just casual. They must be aware of the High Court's subsequent judgment dated 28.11.1992 in the review petitions where they had been impleaded as parties. They should also be deemed to have been conscious of the fact that the earlier decision of 1.4.1991 was no longer in the field. Even then reliance was placed on the earlier order in support of their case.
16. Then, in response to the appellant's pleadings regarding Charge No.(i) it has been stated in the written statement that "the Honourable High Court by its judgment dismissed the writ petition filed by the Association and held it to have been unlawfully constituted". These pleadings are rather evasive and confusing. It is not mentioned as to which writ petition was dismissed and which was the date of judgment. Nor has it been specified as to which Association had filed it, or for that matter which Association was held to have been unlawfully constituted. Since the High Court's subsequent judgment had come about before the filing of written statement on 4.11.1993, these matters should have been specified in the written statement. They cause an impression as if the appellant's Association was declared to have been unlawfully constituted, which is factually incorrect. If these pleadings be taken as they should be,to have made a reference to the High Court's Order of 1.4.1991 they obviously do not disclose the correct factual position, in that the earlier writ petition had been filed by the Association of Gujranwala employees and the High Court's Order pertains to that Association. The appellant's Association was not a party to their writ petition. It is difficult to avoid an inference that what with the arguments, even the respondent's pleadings do not promote their case. There is no reason why reliance should have been placed on a judgment which was no longer in the field.
17. Irrespective of these considerations, however, certain points arising out of arguments of the learned counsel for the parties need be examined with reference to High Court's judgment in the review petitions. For final decision of the points involved, it has to be appreciated as to what exactly was held and with what effect.
18. Although, other charges are there, but the main stress of the respondent's learned counsel' during the course of arguments was on the (Ch. Hasan Nawaz, Member)allegations contained in charges Nos. (i) and (ii) of the show-cause notice. In actual fact, only charge No. (i) regarding the legality or otherwise of the election held on 19.8.1991, is vital and of all importance, considering that the instructions issued by the Regional Commissioner by letter dated 17.8.1991 emanated from the High Court's order. These instructions prohibiting the appellant "from any activity in connection with the elections of the office-bearers of the Association" were admittedly issued on the surmise that the Association had become defunct and illegal on account of the High Court's order. Therefore, defiance of the instructions, could be offensive in character and involve misconduct, only if be taken as a fact that the Association had become illegal and in violation of the Government Rules on the subject. This being so, effectiveness of the charge regarding abuse of the instructions is subject to the substantiation of the charge No. (i) in respect of legality or otherwise of the Association. Under the circumstances, the decision of this appeal depends on the determination of only one question namely whether the Income Tax Employees Association (Class-Ill) had become illegal and defunct as a result of the High Court's Order dated 1.4.1991.
19. Since consequence-wise the first two charges appear to be identical, they may contentionally be dealt with together. For an appreciation of the import of the judgment dated 28.11.1992, reference may be made to the observation that the limine decision of 1.4.1991 "was mainly passed on the limited efforts and research of this Bench" and that "notice of certain circular letters of Establishment Division amplifying applicability of various provisions of the 1973 Rules could not be taken". These observations indicate that the earlier order was not the result of consideration of the matter involved, in its entire gamut and that it was indeed of re-examination.: It was obviously in the back-drop of this concession that the afore-mentioned two questions were formulated by the Court for decision.
20. The main grouse common to all the petitioners in the review petitions enlisted by the High Court was that some adverse action had been taken by the concerned authorities against them on the basis of limine decision of 1.4.1991, Relying upon rules 3 and 7 of the Pakistan Services (Change in Nomenclature) Rules, 1973 hereinafter called the 1973 Rules) and the Establishment Division's d.o.Letters dated 3.11.1973 and 31.1.1974, their learned counsel contended that the duly notified and recognized service associations of Class III and Class IV. Employees are still in existence, but they are not being allowed to function in view of the afore-mentioned order of 1.4.1991. On the contrary, argument of the respondent's learned counsel was that these associations "stood disbanded under the rules and that it was for these reasons that the associations were restrained by the respondents from functioning under the old labels in view of the High Court's Order.
21. The petitioner's contention was accepted by the High Court in repulsion of the respondents' argument and it was held that "in view of various provisions of 1973 Rules especially rules 3 and 7 read with rule 28 of the Government Servants (Conduct) Rules, 1964, the service associations of Class-Ill and Class-IV employees of the Income Tax Department are still in existence and they do not require re-registration or fresh recognition by the competent authorities". It was observed that the only thing to be done by them is that their nomenclature is to be modified with reference to the provisions of rule 7 ibid". Answer to the main question being accordingly in the affirmative, the order of1.4.1991 was modified "to the extent indicated above" in acceptance of the review petitions.
22. "To the extent indicated above" will be dealt with separately. Leaving this aside, however, nothing can be more explicit to show that the subsequent judgment struck down the earlier order laying "that the associations known as Income Tax Employees Association (Class-Ill) as such does not exist and its existence is against law"; which constituted a basis for the Central Board of Revenue's letter dated 18.7.1991, Regional Commissioner's letters dated 8.8.1991 and 17.8.1991 imparting the instructions in question forbidding all activities in the name of these Associations and saying that any such activity will entail disciplinary proceedings. These instructions emanated from- and were the direct result of Department's understanding that they had been declared as illegal and nonexistent. The removal of earlier order from the field, however, reduced these instructions to nothingness and what followed in wake till the order of dismissal became meaningless and redundant; considering that the subsequent judgment replaced the limine order and that it will, by virtue of that circumstance, be deemed to have never held the ground. As a result, be existence of these Associations had always and all along been legal even for the period during which the Department's instructions were issued, ln this view of the matter, there was nothing whatsoever, against which the appellant could possibly have offended. The High Court's judgment in the review petitions left no basis for the Department's opinion, with consequential collapse of the superstructure of Authorised Officer's findings on Charges (i) and (ii) of the notice.
23. A few words about the extent of modification. The Association's existence aspect aside, another question for examination before the High Court was whether they are to function under their old nomenclature or with reference to their corresponding grades/basic scales and what are those grades/basic scales. As it can be noticed from the judgment, it was submitted by the petitioner's learned counsel that these two Associations (Class-Ill and Class-IV) by necessary construction can now work as a joint association of employees from Grades 1 to 15. In the alternative it was submitted that employees of scales 1 and 2 can group themselves in one association of former Class-IV employees, whereas those in Grades/Basic Scales 3 to 15 may group themselves into another association equivalent to former Class-Ill under the "construed modification". While dealing with these submissions it was held that "the old association of Class-IV employees shall be construed to be the association of Income Tax employees of BPS 1 and 2 by whatever new name called and the old association of Class-Ill employees shall be deemed to be the Association of employees of that Department in BPS 3 to 10, by whatever new name called".
24. Although the respondents' learned counsel was not clear on this point, what we could make out of his arguments was that since the appellant was in BPS- 11, he could neither be a member nor take part in the election of the officebearers of former Class-Ill Association and that his participation in the election still amounted to misconduct. Proceeding on the assumption that the High Court's judgment is the final word and that it states the correct legal position, this aspect of the matter should then have been made the subject of a separate charge,clearly setting out the offensive conduct, so that the appellant could have had the opportunity of explaining his position with reference to that charge. He could not be penalized without such an opportunity.
25. It may also be mentioned as a material circumstance that so such case has been made out by the respondents even in their written statement. As a matter of fact, it was not stated either in the pleadings or during the course of arguments as to when he was promoted as Inspector and what was his basic pay scale. We can gather it from the Authorized Officer's report that he was President of Class-Ill Employees Association even for the period from 1989 to 1991. But there is no clarification of the fact that as to what was his post and in which basic pay scale had he been serving during that period. These facts would have had material bearing on the point involved for decision, for it would have enabled us to know whether during that period he had become President of the Association while being in a scale above BPS-10. In any case, he does not appear from the record to have ever been restrained by the concerned authorities from taking part in the election on the ground of being in occupation of a scale above BPS-10.
26. Hitherto, the point involved has been examined only with reference to the High Court's judgment; and so because the leamed counsel for the parties took it as final word in the matter and the only determining factor. They did not address us from the point of view that the administration of Government Servants (Efficiency and Discipline) Rules, 1973 under which the proceedings resulting in the passage of impugned order of dismissal had been taken against the appellant, is the exclusive concern of the Tribunal and that we are competent to go into the question even for and different conclusion, irrespective of the view taken by the High Court. As already noticed, emphasis of the respondent's learned counsel in the main was on Charge No. (i) of the notice. Since the establishment of the charge depends solely on the effect of 1973 Rules on the existence of the Association, we feel that the imperative of considering the question independently of the judgment of the High Court is a judicial compulsion.
27. We have noticed that the Association has been described as illegal by the Department not only in various letters, but also in Charge No. (i) of the notice. The word illegal is rather strong and it goes to the root of the thing. Here in the present case, the root is provided by Article-17(l) of the Constitution which lays down that every citizen shall have the right to form Associations or Unions, subject to any reasonable restrictions imposed by law in the interest of public order. While acknowledging the fundamental right of forming Associations, Rule 28 puts certain restrictions on its exercise,relevant being those of clause (a) which provides that the membership of the Association and its office-bearers shall be confined to a distinct class of Government Servants and shall be open to all Government Servants of that class. The provisions of Article 17(1) and those of Rule 28(a) are still on the book and they have not been modified by the 1973 Rules and I hold the view that the service associations in question cannot attract the application of the (world illegal) so long as they are in operation.
28. The abolition of Classes Rules, 1973 were enforced on the 3rd of November, 1973 to give formal effect to the Prime Minister's decision in this respect announced on 20.8.1973. Under Rule 3 the names of services were changed to Federal Unified Grades. It was provided-that all references to a service be construed as references to the respective grades. By virtue of rule 5 all the concerned persons stood appointed in their existing posts to the respective Federal Unified Grades. Rule 6 provided that notwithstanding anything contained in the Civil Servants (Classification, Control and Appeal) Rules, all classes and classifications of services and posts as gazetted and non-gazetted are abolished.
29. In rule 7 it was laid down that for the purpose of application of any existing rule, order or instruction, reference to a class or to a post as Gazetted or non-Gazetted shall be construed as reference to the corresponding Grade. The table under this rule indicates that the grades corresponding to former Class-II (non-Gazetted), Class-Ill and Class-IV are 11 to 15, 3 to 10 and 1 to 2 respectively. Although, classification of posts into gazetted and non-gazetted was also abolished, the practice of notifying all appointments in Grade I6 and above in the Gazette was allowed to be followed.
30. We propose to underline the importance of certain provisions of these rules. First, no change or amendment was effected in Rule 28(a) of the Conduct Rules and the expression "distinct class of Government servants" was allowed to stay there. Second, under rule 3 of the Rules all reference to a service have to be construed as reference to the respective grades. The third is that in consequence of abolition of classes, the dictate of rule 7 is that all reference to class shall be construed as reference to the corresponding grades. As for example, reference to former Class-Ill will be construed as reference to Grades-3 to 15 of the Unified Grades, as it included posts of those grades in the past. We hold the view, that there is nothing in these provisions to suggest that change in the names of Associations became a legal necessity and that they became illegal or non-existent for want of any such change. They were rather impliedly allowed to continue and function under the old names of Employees Association Class-Ill or whatever, which can clearly be spelled out of the provisions of rules 3 and 7 saying that all references to a service, class or post shall be construed as references to the corresponding grades and the fact that no change has been brought about under rule 28(a) of the Conduct Rules where the term class is still intact. We take these provisions as an allowance to the employees to continue with the old names of their Associations. The construction wherever necessary has been left to those concerned.
31. If seen from another point, the change in nomenclature affects only the form and not the substance, which in this case is provided by Article 17(1) of the Constitution and Rule 28 of the Conduct Rules. So long as an Association conforms to the standard laid down in their provisions, it can never become illegal merely because its employees have allowed their associations to go by a particular name or description.
32. This is moreso, now when even the distinction by Grades has been replaced by the enforcement of scheme of Basic Pay Scales through the Finance Division's O.M. No. l(l)-Imp/83, dated 18.8.1993 laying down the Scheme of Basic Pay Scales and Fringe Benefits of the Civil Employees of the Federal Government. If one comes to think of it, what was the sanctity of 1973 Rules. They have been done away with merely by issuance of executive instructions by the Finance Division. It is worth notice that no amendment has been considered necessary in these rules, although they have been carried out in the Civil Servants Act, 1973, Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and the Federal Public Service Commission (Function) Rules, 1978, replacing reference to grades by corresponding basic pay scales. On the strength of these considerations, these rules cannot be taken to have had the effect of amending Rule 28(a) of the Conduct Rules even by implication.
33. Then, we might see the matter from another point. The right to form as Association is guaranteed by the Constitution as fundamental, so that it cannot be taken away by any law, much less by an implied or subordinate legislation, even if we may be prepared to concede this status to the 1973 Rules. It is only subject to reasonable restrictions imposed by law and that too in the interest of public order. Since such restrictions adversely affect and curtail the scope and extent of a fundamental right, they have to be explicit, definite, independent and do not have to be spelled out of any other provisions of law by interpretation. Therefore, no implied legislation can have the effect of imposing such restrictions and modifying those already clearly provided by law.
34. For the reasons mentioned above I am constrained to hold that the change in nomenclature and abolition of classes brought about by 1973 Rules has no relevance to the Conduct Rules regarding membership of an Association and there is nothing illegal in case the employees of the particular department continue with the old names of their Associations.
35. As for Charges Nos. (iii) to (vii), they contain certain allegations of fact regarding the appellant's participation in the election campaign and then celebration of victory during office hours in the office premises, causing suspension and interference in the Government business; conduct unbecoming of a public servant during election campaign and raising slogans in the office corridors, resulting in obstruction in the performance of Government duties; incurrence of considerable expenditure on printing of posters, hand bills, etc. In support of his election campaign and unauthorized organization of a musical show without prior permission of the competent Authority. He specifically denied these allegations in his explanation in response to show-cause notice and sought an opportunity to lead evidence to prove that they were factually incorrect.
36. Rule 5(l)(ii) of the Discipline Rules provides that the Authorised Officer shall decide whether in the light of facts of the case or in the interests of justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. Rule (iii) provides for procedure to be adopted in case he decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee.
37. The Authorised Officer in this case decided to proceed under rule(iii) instead of rule 5(l)(ii) of the Rules for the following reasons: "In view of clear evidence available in support of allegation I felt satisfied and decided that it was no(, necessary to have an inquiry by appointing Inquiry Officer in the matter and thus a show cause was issued to the official under Rule 5(l)(iii) of the Government Servants (E&D) Rules, 1973 on 21.9.1991 (Annex. VII) informing the accused of the action proposed to be taken in regard to him and the grounds of action".
38. In coming to the conclusion that no inquiry was necessary in the light of the facts of the case or the interests of justice and that summary procedure of Rule 5(l)(iii) was justified, the Authorised Officer appears to have been influenced by the information that the Lahore High Court "had declared Income Tax Employees (Class III) association as illegal through Order dated 1.4.1991" and that "holding of election to the said body irrespective of issue of letters dated 8.8.1991 and 17.8.1991 by the Regional Commissioner of Income Tax involved insubordination and indiscipline". He made.No mention of the High Court's subsequent judgment which had been announced by the the he made his recommendations of 26.12.1992. Had the illegality aspect not been in his mind, he might probably have gone for regular inquiry.
39. This any way is besides the point, which is whether shorter procedure was justified under the circumstances. It is settled law that the Authorised Officer has the discretion to decide which of the two procedures is to be adopted, but this discretion has to be exercised with due application of mind in a judicious manner. Whether an inquiry is necessary in the interests of justice depends upon the circumstances of each case and none can serve as a precedent. In the present case, the charges in nature were clearly such as could only be established by evidence. This was possible only in a regular inquiry where the appellant would have had the opportunity, not only of cross- examining the witnesses but also of leading evidence in rebuttal. No such inquiry has been held, thus making it possible to say that he was provided with an opportunity of defending himself against the oroposed action, in exercise of the fundamental right that no person can be condemned unheard.
40. It may also be mentioned, before leave of the matter is taken that in cases where indictment of an accused is bound to result in punitive action, the fmdings against him may not merely be the result of surmises and inferences. We are, therefore, of the view that nothing has been proved against the appellant, which could have warranted a penalty of dismissal from service.
41. For the reasons mentioned above, the impugned order of dismissal from service dated 4.4.1993 is set aside in acceptance of the appeal. There will, however, be no order as to costs. Parties to be informed.
MUHAMMAD ISMAIL (MEMBER).- I have had the benefit of going through the judgment initiated by my learned brother Ch. Hasan Nawaz, Member. With due regard for his views, I am not inclined to agree with the conclusion arrived at by him in the judgment. I have to make the following observations in the matter.
1. The appellant was served with a show-cause notice dated 21.9.1991 which contained in all seven allegations against the appellant as mentioned in para. 10 of the judgment. The appellant submitted reply to the show-cause notice on 7.10.1991. His explanation to the allegations at Serial Nos. 1 and 2 reads as under: "Since the main charge proceeds on the basis of a peculiar interpretation put on certain observations which occur in the limine Order dated 1.4.1991 passed by Mr. Justice Tiwana* an application has already been instituted in the Lahore High Court to seek appropriate relief. A case has been laid before that the High Court to seek appropriate relief. A case has been laid before the High Court that the manner in which its limine order has been exploited to initiate disciplinary proceedings may well be an at of malice and one which has no lawful authority. The decision of the Lahore High Court on the aspect may be awaited. It is misinterpretation of High Court Order which is the anchor-sheet of the charge-sheet."The allegations at serial Nos. 3 to 7 were specifically denied by the appellant in his explanation in response to the show-cause notice and the sought an opportunity to lead evidence to prove that these were factual incorrect.
2. Keeping in view the pleadings of -the appellant in his reply to the show cause notice and observations of my learned brother at paragraph 39 of the judgment, I am of the opinion that the impugned order dated 4.4.1993 of appellant's dismissal from service, should be set aside and the case remanded to the concerned, department with the direction to initiate fresh disciplinary proceedings against the appellant in respect of the same allegations as provided in rule 5(l)(ii) read with rule 6 of the Government Servants (E&D) Rules, 1973 and pass any order in accordance with law after conclusion of the disciplinary proceedings. The disciplinary proceedings against the appellant should be finalised within a period of six months from the date of receipt of this judgment.
ABDUL RAZZAQ A. THAH1M (CHAIRMAN).- This appeal was heard by a Bench consisting of Mr. Ch. Hasan Nawaz and Mr. Muhammad Ismail, Members. There is difference of opinion between the learned Members and as such this matter has been placed before me under section 3-A of the Service Tribunals Act, 1973.
2. Mr. Ch Hassan Nawaz, by a detailed judgment dated 20.3.1994, set aside the impugned order of dismissal of the appellant in acceptance of the appeal, whereas Mr. Muhammad Ismail, Member has held a different view that in this case proper regular inquiry under Rule 6 of E&D should have been held, and as such he remanded the case to the competent Authority after setting aside the impugned order, to finalise the proceedings within a period of six months.
3. I have heard the learned counsel for the parties. AH the counsel are of unanimous view that the case be remanded for regular inquiry under Rule 6 of E&D Rules, in the interest of justice and fair play, as held by the Hon'ble Supreme Court in a number of cases, that where there are controversial points regular inquiry is necessary in order to afford reasonable opportunity to the parties to put up their defence. In such an eventuality. I agree with the findings recorded by Mr. Muhammad Ismail, Member and . The respondents are directed to initiate and complete the disciplinary proceedings against the appellant, under Rule 6 of E&D Rules, and the same may be completed' with a period of six months, if so desired.
By virtue of proviso (b) of sub-section (2) of section 3-A, the impugned order of dismissal of the appellant is set aside, and the case is remanded to the departmental authorities to initiate disciplinary proceedings under Rule 6 of E&D Rules, if so desired, and the same may be Finalised with a period of six months.