1. ' ABDUL MAJID KHANZADA (CHAIRMAN)---The brief facts as stated by the appellant are that he was appointed as Stenotypist on 1-4-1980 and subsequently on 1-6-1983 he was promoted as Stenographer. According to him once again he was promoted as Superintendent on 28-2-1989 due to his unblemished record of service, in February, 1993 he was posted in Secret Branch of BISE. He has further stated that the Part I and Part II Annual Examination of 1994 of BISE Sukkur were started on 25-5-1994 and the appellant was arrested by the S.H.O., Babarloi, Police Station from his house on 27-5-1994 and he was produced before the Commissioner Sukkur on the same day. He remained with the police and he was tortured by the police off and on. The statement was recorded by the police on 10-6-1994 and 14-6-1994 under duress and torture. According to him he remained-with the police custody from 27-5-1994 to 15-6-1994 and he was only released after the two statements were recorded under the duress and compulsion and was released after examination of BISE Part-I and Part-II were over. He has further alleged that one Altaf Ahmad Shah who is nephew of Mr. Nisar Ahmed Siddiqui, the then Commissioner Sukkur wanted illegal help for his sister who was appearing at that time in H.S.C. Part-I. On his refusal he was got arrested by the Commissioner of Sukkur and statement recorded under duress by the police from him and due to his so-called confessional statement as show-cause notice was served by respondent No,2 on 13- 6-1994 while the appellant was in police custody in presence of the Commissioner Sukkur without any substance in allegations. On 15-6-1994 Deputy Controller of Examination served final show- cause notice on the appellant at his home while he was suffering from Hapatitis (Joundice). As such he requested for some time to reply show-cause notice. His request was turned down on 22- 6-1994. On 3-7-1994 without afforing any opportunity the services of the appellant were terminated. The appellant further pointed out, that on 19-6-1994 the appellant was admitted in Government Hospital and remained there upto 10-7-1994. The appellant according to him was released on 15-6-1994 and final show-cause notice was issued to him with the direction for his personal hearing on 19-6-1994 though from 19-6-1994 to 10-7-1994 he was in hospital as such he requested for extension of time and sent two applications as well as telegram. He sent two applications, dated 13-7-1994 and 25-7-1994 for the copy of the Enquiry Report but the same was not supplied to him. He accordingly filed departmental appeal on 31-7-1994. The penalty of dismissal was reduced to that of compulsory retirement in appeal on 15-5-1996. As such he filed present appeal before this Tribunal on 11-6-1996.
2. ' We have heard the appellant as well as Mr. Kadir Buz Memon, Advocate for the respondents.
3. ' The main contentions of the appellant are that the appellant has been victimized by the Commissioner Sukkur Mr. Nisar Ahmed Siddiquie for not hearing his nephew Altaf Ahmed Shah who was also clerk in the Sukkur Board in connection with his sister who appeared in H.S.C.The whole story is concocted and the confessional statement, dated 10-6-1994 and 14-6-1994 were extorted by the police under duress as he was arrested on 27-5-1994 and remained with the police upto 15- 6-1994. As such according to him his confessional statements were recorded in police custody and signed by the Commissioner and not by any 1st Class Magistrate having jurisdiction of the Police Station. As such it has no value in the eyes of law. He has also pointed out that respondent No,2 was not competent Authority for Grade-16 but it is Board who is the Competent Authority as such orders passed by the respondent No,2 is illegal, void. He has also argued that the respondent had initiated departmental proceedings by issuing show-cause notice as Authorised Officer and he has also passed the dismissal order, as Authority which is against the law, equity and natural justice. He has also argued that the fact finding Enquiry Report despite of his repeated requests was not supplied to him. He has been condemned unheard. His career is unblemish and there is not a single report against him. He has been victimized only because he did not help Altaf Ahmed Shah the nephew of the then Commissioner Sukkur.
4. ' Mr. Kadir Bux Memon, Advocate has argued that according to rule Chairman is Competent Authority for Grade-16. He has also argued that the ground agitated by the appellant in the memo.
5. Of appeal were not agitated in the departmental appeal. According to him one student while going to sit in examination room was searched and was found having paper and solved copy. But when a question was asked from the Advocate as to disclose the name of that student and what action was taken against the student the reply was that the name of the student does not find any place on official paper. As such he cannot say what action was taken against him. He has further argued that some other papers were also recovered from the house of the appellant. He has further argued that the appellant has admitted and it is enough to punish. According to him he was afforded full opportunity. In rebuttal the appellant argued that the personal search of boy and recovery of papers is no ground in show-cause notice neither the report of the Deputy Commissioner as mentioned in the show cause notice. He has also argued that the Advocate for respondents has read old rules and according to new rules for Grade-16 the Competent Authority is Board and not the Chairman.
6. We have heard the arguments of the 'appellants as well as the Advocate for respondents and have perused the record. It is an admitted fact that the appellant was arrested on 27-51994 and was in police custody up to 15-6-1994. It is also matter of record that the appellant has remained in Government Hospital as he was admitted on 19-5-1994 and remained in the Hospital upto 10-7- 1994 as certified by Dr. Muhammad Anwar such certificate is filed by the appellants as Annexure 'D".
7. We are in agreement with the arguments of the appellant that the statement during the custody of the police have no evidentiary value, unless the same is recorded by .1st Class Magistrate having jurisdiction of the concerned police station and after affording the full opportunity and warnings to the maker of the statements such as that he is not bound to make the statement, that the same statement may be used against him and that he is released from the policy custody and at least two hours are given in chamber to think over then alone after the warning if he makes statement that statements can be used as confessional statement against the maker. Here, there is nothing of the sort. On the other hand such statement is signed by the Commissioner as before me, dated 10-6-1994..The show-cause notice is based on such statement which was issued by the Chairman as Authority. The final show-cause notice, dated 19-6-1994 is also issued by respondent No,2, the Chairman as Authority and dismissal order, dated 3-7-1994 is also passed by respondent No,2, Chairman as Authority. The departmental appeal preferred by the appellant to the Board of Intermediate and Secondary Education, Sukkur and the same was considered by the Committee appointed for the purpose and vide resolution No,4 approved the recommendation and reduced punishment from dismissal from service to the compulsorily retirement on humanitarian grounds w,e,f,, 3-7-1994. Show-cause notice and final show-cause notice were issued by respondent No,2 and services were also terminated by respondent No,2. As such the Respondent No,2 acted as Authorised Officer as well as Authority. Rules submitted by the appellant which were published by Notification, dated 20-3-1995 reads as under:-- ' In pursuance of the Resolution No,II, passed by the Board in its meeting held on 10-2-1994, it is notified for the general information of all the concerned that in order to bring about uniformity with other Boards, the qualification, experience and method of recruitments of the posts in BS.12 to BS.19 in the Board of Intermediate and Secondary Education, Sukkur with effect from 10-2-1994 are prescribed as under:-- ' Whereas Serial No,11, Superintendent BS.16, Competent Authority/Appointing Authority is Board and not the Chairman. As such the orders passed by the respondent No,2 are without authority, void, illegal and have no force in the eyes of law. The rules relied by the appellant as stated above are the recruitment rules whereas the action taken against the appellant is under Board of Intermediate and Secondary Education, Sukkur Employees (E & D) Rules, whereunder the Authority means the Chairman or any officer or authority designated by him to exercise the powers of the authority under these rules. These rules have not been amended as contended by the Advocate for the respondents. Since, no amendment in the aforesaid E & D Rules has been brought to our notice by the appellant, therefore, we have no option but to hold that Chairman was the Competent Authority to take disciplinary action against the appellant who is an employee of BS.16.
8. However, we have noticed that whole disciplinary action has been initiated on the basis of statement of the appellant admitting his guilt before the Commissioner, Sukkur and the show- cause notice is based on such admission. We are surprised as to how Commissioner Sukkur figured in the matter and the learned Advocate for respondents could not give us any plausible justification for the interference of the Commissioner in the matter. Particularly when the allegation of appellant as to make of such admission of guilt before Commissioner Sukkur while he was in police custody borned out of the record.
9. ' We have perused the show-cause notice, dated 13th June, 1994 which is mainly based on the admission of the guilt of the appellant before the Commissioner Sukkur and right after two days the final show-cause notice succeeded where under appellant was called upon why the major penalty should not be imposed upon him and thereafter on 3rd July, 1997 appellant was dismissed from service with immediate effect. According to us in the process of disciplinary action which has been taken against the appellant, no fair and sufficient opportunity of the defence has been given to the appellant. We have also noticed that the allegations against the appellant in the show- cause notice are not only serious but a factual nature. In such type of allegations in order to prove them unless an enquiry is held no findings of fact can be recorded against the appellant. Since on record enquiry has been held and the action has been taken against the appellant on the basis of mere show-cause notice, therefore, on this score impugned order cannot be maintained. It is accordingly set aside, with no orders as to costs. However, respondents are at liberty to proceed afresh in the matter after fulfilling and observing all the formalities. The intervening period be treated as leave due to him. The appeal is accordingly allowed.