' RAJA BASHIR AHMAD KHAN (CHAIRMAN).--This appeal arises out of Notifications No, Admin/Inquiry Wing/I-30-3/93, dated 6-1-1994, Admin/Inquiry Wing/I-3-20/93, dated 7-2-1994 whereby the appellant was dismissed from service and it was also ordered that the amount of Rs,18,49,886 may also be recovered from him.
2. Briefly stated the facts are that the appellant was functioning as Registrar Cooperative Societies.
He was transferred from the post and appointed as Additional Secretary Services on 28-2-1992. He was proceeded under Efficiency and Discipline Rules on various charges and inquiry was held against him. The Inquiry Officer submitted his report to Authorised Officer who recommended to the Authority that the appellant be dismissed from service. The Authority (Prime Minister) accepted the recommendations of Authorised Officer and consequently the impugned order was passed.
3. The appellant submitted review applications to the Prime Minister against the impugned notifications. The review applications remained undecided and the appellant after expiry of ninety days preferred this appeal before the Tribunal. The respondents have filed their written objections.
The contents of appeal have been denied. The appellant has appeared as his own witnesses and the statements of Maulvi Raja Muhammad Hadyat Ullah Khan, Iftikhar Hussain Abbasi, Pervaiz Butt, Sardar Iqbal, Muhammad Rashid Khan Rathore, Additional Secretary, Abdul Wahid Khan and Muhammad Ishaque have been recorded as witnesses on behalf of the appellant.
4. We have heard the counsel for the parties and have gone through the record.
5. The argument of the counsel for the appellant is that the Inquiry Officer has failed to comply with the provisions of Efficiency and Discipline Rules. The report of Inquiry Officer is based on conjectures and surmises and without taking into consideration the nature and substance of the charge he submitted his report.
6. The Authorised Officer framed a charge and communicated it to the accused with a statement of following allegations:-- {{URDU TEXT}}
7. The appellant had from the very inception of the inquiry objected to the, appointment, conduct and partiality of the Inquiry Officer but the objection so raised was repelled by the competent Authority and the Inquiry Officer proceeded to conduct the inquiry. From the inquiry report it appears that in the opinion of Inquiry Officer eight out of fifteen charges have not been proved.
Allegations Nos. 6, 9 and 11 have partly been proved. Four out of fifteen charges have been reportedly proved. This shows that the Inquiry Officer was absolutely impartial in the conduct of the inquiry.
8. The fear, apprehension or allegations of appellant regarding the impartiality of the Inquiry Officer were ill-founded. The impartiality of the Inquiry Officer aside we have to examine whether the inquiry has been finalised in accordance with the provisions of Efficiency and Discipline Rules.
9. When a civil servant is being proceeded under Efficiency and Discipline Rules the procedure to be observed by the Authorised Officer is:- "(i) The Authorised Officer has to decide within three days of the receipt of the direction from the Authority or within such further period as may be allowed by the Authority whether in the light of the facts of case or in the interest of justice, an inquiry is necessary.
(ii) In the opinion of Authorised Officer inquiry is not necessary he will issue a show cause notice to the accused civil servant informing him of the actions to be taken against him alongwith the grounds of action and shall give the accused civil servant a reasonable opportunity of showing cause against that action within a period of fourteen days."
10'. In this case it appears that the Authorised Officer followed the first course and decided that the facts of the case required thorough investigation of the matter through an inquiry and for that purpose he appointed Raja Muhammad Farooq Niaz, Director Industries to enquire into the allegations. In case of procedure to be followed where inquiry is necessary a comprehensive procedure has been provided under Rule 7 of the abovementioned Rules. The scheme of Efficiency and Discipline Rules particularly the provision of Rule 7 appears that all the facts should be brought to the light and the parties are to be provided opportunity of producing evidence in support of the charge or in defence of their claims and every party is entitled to cross-examine the witnesses of other party.
11. The record of inquiry made available to us is found in File No, 1 of Inquiry Wing/I/3-20. The perusal of the record shows that the Inquiry Officer did not make a separate file for the purpose of inquiry and the papers are found scattered here and there in the file. The papers have not been placed in any proper order. It is requirement of sub-rule (3) of Rule 7 that the Inquiry Officer or the Inquiry 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 has got to be reported forthwith to the Authorised Officer. From the record it appears that no interim orders sheet was ever prepared. The statement of appellant was recorded on 27-6-1993 and the statement of Ch. Muhammad Iqbal, Circle Registrar was recorded on 4-7-1993. There is no material on the record to suggest that when the statement of Ch. Muhammad Iqbal was recorded the appellant was present before the Inquiry Officer. There is no order to that effect on the file. There is also no material on the file that the inquiry was being conducted from day to day and adjournments given were being reported to the Authorised Officer. It appears that after recording the statement of Ch. Muhammad Iqbal, Circle Registrar on 4-7-1993 the Inquiry Officer after examining the record formulated its inquiry report and despatched it to Authorised Officer (Secretary, Cooperative Societies Department) under letter No, 4510, dated 11-7-1993. We have gone through the inquiry report and find that whatever the facts have been considered by the Inquiry Officer in his report have not been brought on the file through the witnesses or any other evidence oral or documentary and has based his opinion on the facts either stated by the appellant or the facts which were found in the record of the department. If the report was to be sent without evidence there was hardly any need to appoint an Inquiry Officer in this case. The procedure as provided under sub-rule (3) of Rule 6 could have been desirable and a show-cause notice could have served this purpose. The very fact that the Authorised Officer decided to appoint an Inquiry Officer meant that the Inquiry Officer should complete the inquiry under the provisions of Rule 7 where it is explicitly provided under the sub-rule (1) of Rule 7 that the Inquiry Officer shall enquire into the charge and may examine such oral or documentary evidence as may be necessary and where any witness is produced by one party, the other party is entitled to cross- examine that witness. The statement of Ch. Muhammad Iqbal was recorded on 4-7-1993. There is no indication that the statement was recorded in the presence of the appellant. This witness has not been cross-examined which shows that the appellant has been denied his right to cross- examine the witness. The Inquiry Officer has failed to comply with the requirements of the rules and has thus prejudiced the conduct of the inquiry to The detriment of the rights of the appellant. The main charge against the appellant contained in the charge-sheet is charge No,2. The finding of the Inquiry Officer On this charge is reproduced:- {{URDU TEXT}} ' It is evident from the findings of the Inquiry Officer regarding this charge that he formulated his opinion on the record of the department. No evidence has been recorded regarding the facts relied upon by the Inquiry Officer. The Inquiry Officer has rather referred to the record of the department and also on the details of accounts stated or presented by the appellant. These facts must be proved by oral or documentary evidence and should be made part of the record. The provision of Rule is meant to give opportunity to the concerned civil servant to explain the evidence which is being brought against him and enable him to support his own version of the case. The appellant has claimed that he was within his authority to pass various orders or takes the actions. It was imperative for the Inquiry Officer to bring all materials on the record which could negate the claim of the appellant and discuss as to what were the powers of the appellant and how did he exceed in exercise of those powers. Similarly in other allegations the same procedure has been adopted by the Inquiry Officer. The sole witness whose statement was recorded by the Inquiry Officer on 4-7- 1993 was recorded in the absence of appellant and without providing him opportunity of cross- examining the witness. This statement cannot be read against the appellant and any reliance placed on the statement of this witness is of no value and has got to be ignored. In the circumstances it is not possible for us to accept the findings of the Inquiry Officer.
12. The counsel for appellant has also contended that the appellant has not been granted opportunity of personal hearing by the Authority. The appellant has stated in his statement that before awarding him major penalty the authority has not given him a show-cause notice and he has not been afforded the right of personal hearing and he has also not been informed of the proposed actions. This statement of the appellant has not been refuted. The perusal of the record shows that the Authorised Officer submitted his recommendations on 22-8-1993 and proposed the following actions against the appellant: {{URDU TEXT}} ' The Authority (Prime Minister) accepted the recommendations vide his order dated 2-9-1993.
From the record it appears that despite the orders of the Prime Minister dated 2-9-1993 some other developments took place and the following directions were issued by the Acting Prime Minister to the Chief Secretary on 19-9-1993: {{URDU TEXT}} {{URDU TEXT}} ' The Chief Secretary in pursuance of the directions of the Acting Prime Minister recorded the following note:-- {{URDU TEXT}} ' On this note of the Chief Secretary the Prime Minister ordered as follows: {{URDU TEXT}} ' The matter was referred to the Secretary Services. In view of the directions of the Prime Minister a Committee was constituted consisting of Mr. Karam Sher Bhatti, Additional Accountant-General, Mr. Atta Mohiuddin, Additional Secretary, Law and Muhammad Rashid Khan Rathore, Additional Secretary; Services (Inquiry). The Committee was required to consider the legal as well as financial aspects of the case. The Committee submitted its report which is to the following effect:-- {{URDU TEXT}}
13. The Prime Minister was pleased to observe that the Chief Minister personally heard the appellant on his directions. There is no need of further personal hearing and the order be implemented accordingly.
14. From the above facts it appears that the Prime Minister without affording opportunity of personal hearing to the appellant accepted the recommendations dated 22-8-1993 of Authorised Officer for dismissal of the appellant from service. On the direction of Acting Prime Minister the Chief Secretary discussed the matter in details with the appellant and proposed that since the appellant had committed embezzlement of a large amount the orders of the Prime Minister dated 2-9-1993 should be maintained. The Chief Secretary was directed to hear the appellant on a limited point of payment of the embezzled amount. No further action would have been taken if the appellant had agreed to pay the amount. The Chief Secretary was directed to hear the appellant on a restricted matter which had nothing to do with the recommendations of the Authorised Officer. It is a mandatory requirement of Rule 8 of the Azad Jammu and Kashmir Efficiency and Discipline Rules, 1977 that before imposing a major penalty, the Authority shall afford the accused an opportunity of being heard in person, either before himself or before an officer senior in rank to the accused designated for the purpose. The requirement of the rule is that the Authority should itself afford opportunity of personal hearing or a senior officer should be designated for the purpose. The Authority (Prime Minister) did not afford any opportunity of personal hearing to the appellant. The Chief Secretary was also never designated by any order of the Prime Minister to hear the appellant personally regarding recommendations made by the Authorised Officer. The designated Officer has to prepare the record of personal hearing. The Authority after taking into consideration, the record so prepared by the designated Officer could pass an appropriate order.
The manner in which this case was dealt by the Authority is clearly violative of the provisions of abovesaid rule and the penalty of dismissal imposed upon the appellant without personal hearing is not sustainable. We accordingly accept this contention of counsel for appellant.
15. The appellant has challenged two notifications namely:--
(i) Notification No, Admin/Inquiry Wing/1-30-3/93, dated 6-1-1994.
(ii) Notification No, Admin/Inquiry Wing/1-3-20/93, dated 7-2-1994.
' While going through the record we find that the appellant preferred review application against the first Notification dated 6-1-1994 before the Government on 27-1-1994 and he impugned the second notification before competent authority through a review application which he filed on 16-3-1994.
The first notification issued on 6-1-1994 was challenged before the Prime Minister on 27-1-1994 which was within . The time allowed under law. The appellant preferred this appeal on 7-5-1994 which shows that he filed the present appeal after expiry of statutory period of ninety days and within thirty days allowed after the expiry of this statutory period but in the other case we find that the second review application was filed on 16-3-1994 before the Prime Minister and the appellant jointly challenged both notifications through the present appeal before this Tribunal. It is evident from the above facts that the appellant did not wait for the expiry of statutory period of ninety days after preferring the second review application. Any civil servant aggrieved by a final order whether original or appellate made by a departmental authority regarding his terms and conditions of service can file an appeal before the Tribunal but before doing so he has to first exhaust all departmental remedies as provided under proviso (a) to section 4 of Azad Jammu and Kashmir Service Tribunals Act, 1975. The appeal against Notification No, Admin/Inquiry Wing/1-3-20/93, dated 7-2-1994 was filed alongwith the first Notification dated 6-1-1994 on 7-5-1994 without waiting for the expiry of the period of ninety days. The appellant has approached this Tribunal before the expiry of period of ninety days and has, in the case of second notification thus violated the provisions of section 4 of the Service Tribunals Act. The second notification is shown to have been issued in continuation of the first notification and the appellant has also stated in the second review application that it is in continuation for the first review application but we are of the view that the second notification is independent of the first notification and was to be challenged separately. The requirement of Service Tribunals Act has not been satisfied while preferring the present appeal in respect of second notification. The appeal against Notification No,Admin/Inquiry Wing/1-3-20/93, dated 7-2-1994 is patently and clearly premature and is liable to be dismissed.
16. In the light of the above discussion we are of the opinion that the penalty of dismissal imposed upon the appellant is not maintainable and for that the order of dismissal issued under Notification No, Admin/Inquiry Wing/1-303/93, dated 6-1-1994 is liable to be set aside. As far the second Notification dated 7-2-1994 is concerned we are of the view that the appellant has filed his appeal before the expiry of the statutory period of ninety days and this appeal appears to be premature.
The appeal is partly liable to be dismissed on this score.
17. The result is that we accept the appeal so far it relates to Notification No, Admin/Inquiry Wing/1- 30-3/93, dated 6-1-1994 and set aside this notification and remand the case with the directions that fresh inquiry may be ordered and the matter may be disposed of in accordance with the provisions of Efficiency and Discipline Rules. The appeal fails as far as the Notification No,Admin/Inquiry Wing/1-3-20/93, dated 7-2-1994 is concerned and we hereby dismiss this appeal to the extent of the said notification. The situation as obtaining when the impugned notifications were issued shall continue to prevail. The competent authority, may, however, pass any order which may be permissible under law relating to the terms and conditions of service of the appellant. In view of the complicated nature of this case we make no orders as to costs.