' SALEEM AKHTAR, J.---The appellant, with the leave of this Court, challenges the judgment of the Federal Service Tribunal whereby his appeal against the order of his dismissal from service was allowed by substituting it with an order for compulsory retirement with all consequential benefits.
2. The appellant was working as Post Master, Gujranwala when he was served with four charge- sheets dated 6-1-1990, 10-1-1990, 23-1-1990 and 10-2-1990. In the first charge-sheet, he was alleged to have committed gross misconduct for: "(i) Serious violations of departmental rules and regulations;
(ii) Wilful disobedience and disregard of written orders issued by this office;
(iii) Misuse of official position and authority."
' In the second charge-sheet, misconduct was alleged for the following reasons:-"(i) Serious violation of departmental Rules and Regulations;
(ii) Wilful disregard of written orders issued by this office;
(ill) Cheating the Government and Post Office Department thoroughly causing financial loss of Rs,1,056.25 only to Government and the Department."
' In the third charge-sheet, misconduct was attributed on the grounds of:- "(i) Wilful disobedience of written orders issued by this office (the CPM Gujranwala G.P.O.);
(ii) Showing negligence and carelessness towards official duties and official correspondence;
(iii) Trying to cause disruption in Government work."
' In the fourth charge-sheet, misconduct was alleged for the following reasons:-- "(i) Wilful disobedience of orders issued by the competent and concerned authority (C.P.M.G. Wala G.P.0);
(ii) Serious violation of departmental Rules and Regulations;
(iii) Misuse of official position and authority."
' The appellant was required to submit his reply and also to state whether he wanted to be heard and produce any witness in defence and submit any document. He was called upon to show cause why any of the major penalties including dismissal from service as specified in the Government Servants (Efficiency and Discipline) Rules, 1973 (hereinafter called the Rules) should not be imposed on him. The appellant submitted his reply and it is alleged that thereafter all the charge-sheets were withdrawn. The learned counsel for the appellant has produced office memo. No,B-125 dated 14-2-1990 by which office memo. Of even number dated 10-1-1990 has been cancelled, but no such memo. Or order has been produced in respect of other charge-sheets. Be that as it may, the Tribunal has also observed that all the charge-sheets were withdrawn. However, later the appellant was dismissed from service by order dated 29-3-1990 which he challenged before the Service Tribunal and the Tribunal while allowing his appeal, substituted the order of dismissal from service with an order of compulsory retirement from service with all consequential benefits making the following observations:-- "...It is evident that the appellant had been confining himself and not traceable for contact and through correspondence by the respondent-department and he had even acted beyond jurisdiction by lacking/closing down the Post Office unauthorisedly using his union office as instrument of threat for which his misconduct was beyond any doubt. But since initially the appellant had been served with charge-sheets which had later been dropped after considering his replies as satisfactory. This aspect would give rise to doubt that respondent-department which had initially started taking disciplinary action against the appellant by serving charge-sheets by following rules 5 and 6 of the Government Servants (E&D) Rules and why at a later stage they made a short cut and invoked rule 8(b) and awarded dismissal to the appellant. For this doubtful situation the benefit can be given to the appellant who had rendered long service to the Department from 27-9-1952 to 29-3-1990 i,e, 37/1-2 years. We, therefore, accept the appeal and set aside the impugned order of 29-3-1990 and substitute it with an order for compulsory retirement With all consequential benefits."
3. Leave was granted to consider whether the action of the respondents under rule 8(b) of the Rules has legal cover.
4. The appellant was dismissed from service by order dated 29-3-1990, which reads as follows:- "Pakistan Post Office Office of the Post Master General Southern Punjab, Lahore. Memo. No, Staff/R- 54/90, dated at Lahore the 29-3-1990.
' Mr. Muhammad Saleeth Perami, Postmaster designate Qutabpur, Multan Region, is hereby dismissed from Government service with immediate effect under the provisions of Rule 8(b) of Government Servants (E&D) Rules, 1973.
(Sd.)
Dy. Postmaster General (S&E)."
' As the respondents have invoked rule 8(b) of the Rules, the same is reproduced below:- "8. Rule 5 not to apply in certain cases: Nothing in Rule 5 shall apply to a case --
(a) where the accused is dismissed or removed from service or reduced in rank, on the ground of conduct which has led to a sentence of fine or of imprisonment; or
(b) where the authority competent to dismiss or remove a person from service or to reduce a person in rank, is satisfied that, for reasons to be recorded in writing by that authority, it is not reasonably practicable to give the accused an opportunity of showing cause."
A perusal of this rule will show that it excludes the applicability of rule 5 in certain cases. Rule 5 lays down inquiry procedure, which is to be observed when a Government servant is proceeded against under the Rules. Under this rule, the Authorised Officer has to decide whether in the light of facts or in the interest of justice, an inquiry should be conducted through an Inquiry Committee. If this course is adopted, then the procedure provided in rule 6 has to be followed. But in case the Authorised Officer decides that it is not necessary to have an inquiry conducted through an Inquiry Committee, then he would inform the accused of the action proposed to be taken against him and the grounds for such action. The accused should be provided reasonable opportunity of showing cause against that action. There is an exception provided where show-cause notice may not be given if the Authority is satisfied that in the interest of security of Pakistan or any part thereof it is not expedient to give such opportunity. Therefore, an accused can be deprived of show-cause notice in case the interest of security of Pakistan is involved and it is not proper in such circumstances to issue a show-cause notice to him. The Rule, therefore, prescribes departure from the regulated and well-accepted principle of natural justice in a specified and rare situation in which security of Pakistan or any part thereof is involved. Rule 8 reproduced above excludes the applicability of rule 5 in certain cases specified therein, one of them being stated in sub-rule (a) where the accused is dismissed or removed from service or reduced in rank on the ground of conduct, which has led to a sentence of fine or of imprisonment. Where such sentence of fine or imprisonment has been awarded by a Court, the facts/conduct leading to such sentence can be made ground for dismissal or removal from service without applying procedure provided by rule 5.
The other situation is where the authority competent is satisfied that it is not reasonably practicable to give the accused an opportunity of showing cause. Such a situation may arise in different circumstances and facts, which cannot be specified or restricted. It will entirely depend upon the facts of each case to determine whether it is not reasonably practicable to give an opportunity of showing cause. The words 'not reasonably practicable' indicate such circumstances and facts in which it is not conducive in the interest of justice nor equitable, fit, just or conscionable to practically follow the procedure of issuing show-cause notice. Rule, 8 being in the nature of exception to rule 5 has to be strictly construed and cannot be interpreted in a wide manner to bring in its net cases which do not rigidly fall within its four corners. The other condition for applicability of rule 8(b) is that the authority who is satisfied that it is not reasonably practicable to give the accused an opportunity of showing cause, should record the reasons for such satisfaction.
Therefore, any order passed or action taken under rule 8(b) should precede by recording or include in the order itself the reasons for satisfaction why it is not reasonably practicable to issue show-cause notice. If any authority takes action and passes an order by invoking rule 8(b) without recording reasons in writing, such order would be illegal and will not be a compliance of rule 8(b).
Rule 8(b) being a departure from the principles of natural justice, which are applicable to all cases where an adverse order is passed against a party, should be made in the manner as provided by the rule itself. As penalty is to be imposed upon the accused without affording luin opportunity of showing cause, it becomes incumbent, more particularly because such is the requirement of rule 8(b), that the authority should record his reasons in writing for his satisfaction to apply this provision.
4. In the present case, the order of dismissal has a background as well. First, respondent No,1 issued four charge-sheets with specific allegations calling upon the appellant to show-cause and submit his reply within a specified time. The appellant replied all the charge-sheets, but later, as observed by the Tribunal, all the charge-sheets were withdrawn. One letter of withdrawal of charge-sheet dated 10-1-1990 was issued on 14-2-1990. Charge-sheets dated 6-1-1990, 23-1-1990 and 10-2-1990 were of the same nature as they contained identical allegations. The other charge-sheet dated 10- 1-1990 was on the allegation that he had committed cheating by drawing house rent allowance while occupying Government residence. From the conduct of respondent No,1 it seems that either he was satisfied with the explanation and did not like to proceed further in the matter or with a view to proceed under the provisions of rule 8(b) he withdrew the charge-sheets, ignored or failed to take any action on those show-cause notices which were issued and were duly replied. If this was the reason for invoking rule 8(b), then there was no justification to take such action as it would be tainted with mala fides to invoke a disadvantageous provision in preference to the normal provisions under which action had been taken and proceedings drawn. Respondent No,1 has not given any reason nor any document has been placed on record to show that he had recorded any reasons for invoking rule 8(b) and, therefore, the order of dismissal under that provision was illegal and without jurisdiction.
5. We, therefore, allow the appeal, set aside the order of the Tribunal and also that of respondent No,1 dismissing the appellant from service. Respondent No,1 will, however, be free to take such action against the appellant as may be deemed proper according to law.