' BASHARAT AHMAD SHEIKH. J.---The appellant was serving as a Treasury Accountant in Headquarters Treasury Section, Accountant-General's Office at Muzaffarabad, when he was proceeded against under the Government Servants (Efficiency and Discipline) Rules, 1973 for inefficiency and misconduct in connection with fraudulent drawal of Rs, 3,76,044.11. An Inquiry Officer was appointed who reported that the charges of inefficiency and misconduct stood proved against the appellant. The Authorised Officer recommended that major penalty of dismissal from service be imposed upon the appellant. The Accountant-General of Azad Jammu and Kashmir, who was Authority of the appellant, acting on the report of Inquiry Officer and recommendations of the Authorised Officer imposed the penalty of dismissal on the appellant and also ordered the recovery of Rs, 3,76,044.11. The order was passed on 24th of August, 1994.
2. After completing the necessary formalities, the appellant filed appeal before the Federal Service Tribunal, Islamabad which also functions as the Service Tribunal for the civil servants employed in connection with the affairs of Azad Jammu and Kashmir Council. The appeal was dismissed by the Service Tribunal. The learned members of the Service Tribunal expressed the view that although direct evidence was not available yet the circumstantial evidence was sufficient to connect the appellant with the crime ascribed to him. The Tribunal expressed the opinion that the fact that appellant booked vouchers in the classified register but failed to produce them before the inquiry officer was sufficient to prove the guilt of the appellant. The other piece of circumstantial evidence relied upon by the Service Tribunal was that the appellant fled from the scene when the case was about to be registered with the police and remained underground for more than a year. It was contended before us by the learned counsel for the appellant that the Inquiry Officer did not follow the procedure laid down for conducting an inquiry. It was contended that the inquiry officer should have given an opportunity of cross-examining the witnesses but what the inquiry officer actually did was to cross-examine the appellant. It was argued on behalf of the appellant that the finding of inquiry officer, which has been upheld by the Service Tribunal, was not based on any legal evidence. It was then submitted that, in any case, the circumstantial evidence was not sufficient to prove the charges against him.
4. Two procedures are laid down in the Government Servants (Efficiency and Discipline) Rules, 1973 for taking disciplinary action. One procedure, which is summary in nature, is followed if, in light of the facts of the case or in the interest of justice, it is not considered necessary to appoint an inquiry officer or inquiry committee. The other procedure is laid down in rule 6 which has been applied in the case in hand. Rule 6 is to the following effect: (6). Procedure to be observed by the Inquiry Officer and 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 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 Inquiry Officer or the Committee, as the case may be, shall inquire into the charge and may examine such oral or documentary evidence .In support of the charge or in defence of the accused as may be considered necessary and the accused shall be entitled to cross-examine the witness against him.
(4) The Inquiry Officer or the Committee, as the case may be, shall hear the case from day to day and no adjournment shall be given except for reasons to be recorded in writing. However, every adjournment, with reasons therefor, shall be reported forthwith to the authorised officer. Normally no adjournment shall be for more than a week.
(5) Where the Inquiry Officer or the Committee, as the case may be, is satisfied that the accused is hampering, or attempting to hamper, the progress of the inquiry he or it shall administer a warning, and if thereafter he or it is satisfied that the accused is acting in disregard of the warning, he or it shall record a finding to that effect and proceed to complete the inquiry in such manner as he or it thinks best suited to do substantial justice.
(6) The Inquiry Officer or the Committee, as the case may be, shall within ten days of the conclusion of the proceedings or such longer period as may be allowed by the authorised officer, submit his or its findings and the grounds thereof to the authorised officer."
5. It may be noticed that when regular inquiry is being held against a civil servant sub-rule (3) provides that the inquiry officer shall inquir into the charge and may examine such oral or documentary evidence as may be considered necessary. The sub-rule also provides that the accused shall be entitled to cross-examine the witnesses against him. It follows that in sub-rule (3) there are four basic requirements which have to be fulfilled. Firstly that the Inquiry Officer has to inquire into the charge which means that he is to hold an inquiry. The second requirement is that oral or documentary evidence has to be examined in support of the charge. The third requirement is that the accused has to be given an opportunity to produce necessary evidence in his defence. It is significant that while referring to civil servant who is being proceeded against under the Government Servants (Efficiency and Discipline) Rules, the word "accused" has been used which indicates that the proceedings conducted by the inquiry officer are akin to a criminal trial.
6. In the case in hand the inquiry officer did not follow the procedure indicated above. In the memorandum of appeal filed before the Service Tribunal it was averred that the inquiry officer conducted the proceedings at the back of the appellant and did not provide an opportunity of cross-examination. In the written statement filed on behalf of the appellant before the Service Tribunal it was stated that inquiry was conducted strictly in accordance with the Efficiency and Discipline Rules. It was further averred that providing for an opportunity to cross-examine the defence did not arise in the present case because no witness was examined at all. It was claimed that no witnesses were necessary in presence of the documentary proof/record. A perusal of reply to the charge-sheet submitted by the appellant before the inquiry officer shows that he did not admit the allegations against him. The question, therefore, arises what is the proof on which the findings of the inquiry officer are based? To explain this position the respondents have filed some documents with their concise statement. Out of them Annexure "DF" shows that the inquiry ofiicer examined the appellant and put him some questions. This is the only proceeding which forms the basis of findings recorded by the Inquiry Officer. The procedure adopted by the Inquiry Officer is clearly in conflict with the Government Servants (Efficiency and Discipline) Rules. We have seen in sub-rule (3) of rule 6 that the inquiry officer is required to examine oral or documentary evidence in support of the charge. He is also authorised to examine the oral or documentary evidence in defence of the accused but it does not authorise the inquiry officer to examine the accused and then decide the case. In our view, the accused can only be examined if he wishes to get his statement recorded in his defence and this can only be done when prosecution evidence has been recorded. It appears to us that the inquiry officer was under the wrong impression that it is the appellant who has to prove his innocence. We have perused the statement of the appellant recorded by the Inquiry Officer and find that the questions are in the nature of cross-examination.
As mentioned above the position adopted before the Service Tribunal by the respondents was that it was not necessary to examine any witness because the case stood proved from the documents.
What documents were examined and who produced them before the inquiry officer is not clear from the record. One thing is, however, clear that the documents were not shown to the appellant.
Inquiry Officer is like a Judge and he cannot, therefore, play the role of a prosecutor. Therefore, it is not permissible for him to fish out a case against the accused civil servant. This job should be left to the departmental representative. If the Inquiry Officer thought that any document incriminated the appellant it was his bounden duty to make the appellant aware of the incriminating material and to give him an opportunity to meet it. The record also shows that the Inquiry Officer also did not offer the opportunity to produce any defence evidence. We thus reach the conclusion that the finding of guilt was recorded arbitrarily without following the relevant rules and the penalty based on the finding of the inquiry officer cannot be sustained.
7. However, the charges against the appellant are serious in nature which have not been properly inquired into. Therefore, the appellant cannot be exonerated without proper inquiry. In these circumstances the respondents would be free to hold de novo inquiry in accordance with law, if so advised.
' We, therefore, set aside the order passed by the Service Tribunal as well as the penalty imposed on the appellant.