' MUHAMMAD AYUB KHAN (MEMBER)---Arguments have been heard and record perused.
2. Facts of the case, as appear from the record, are that the appellant was appointed as Accounts Officer in the year 1990 pursuant to advertisement and interview for the post by the competent Authority and was posted at Nuclear Medicines and Radiotherapy Centre at Quetta, hereinafter referred to as the NMRC, as per Annexures-"A" and "B". The appellant served for about two years at Quetta and during this period one Ultrasound Machine was purchased by the Director of the said Centre and half amount was paid by him in advance and when a bill for the remaining amount of payment received by the appellant, he raised objection to it, under the rules, for non-observance of the codel formalities regarding calling of competitive quotations. The price was near about Rs,13,00,000 whereas actually it was available in the market for about Rs,3,00,000. The Director pressurized the appellant for signing the bill but he (the appellant) was adamant not to sign the bill and refused and as such the Director got annoyed and recommended the competent Authority for transfer of the appellant from Quetta to Headquarters at Islamabad without any reason despite being that the appellant had not completed the usual tenure of three years at Quetta vide copy Annexure-C and after a year the appellant requested the Director (Accounts), Islamabad, for his retransfer to Quetta who recommended his application and forwarded to the Member, Finance, who was the competent authority in respect of his transfer and he was pleased to issue a letter for his transfer and forwarded the case to, the Member (Admin.) for issuance of a formal notification but he did not issue the notification on the basis of the verbal complaint of the Director of the Quetta Centre who had come' to Islamabad and worked ten days over here and who informed the appellant that he had been transferred to Quetta vide Office Order, dated 9-3-1993 (Copy Anniexure-D).
3. It is further alleged at Para.4 of the appeal that in the year 1996 an Audit Party headed by Mr. Muhammad Mushtaq, Accounts Officer, Audit Head Office, Islamabad visited Quetta for auditing the accounts of Quetta Centre and submitted its report after a month. Thereafter the Head Office constituted another Fact Finding Committee and one Mr. Mushtaq Ahmed, Accounts Officer, who had earlier conducted the audit at Quetta was also included as Member of the Fact Finding Committee, Headquarters, Islamabad, before which the appellant had submitted the relevant record and after lapse of one month of the said Committee, another Audit Party was constituted by Head Office, Islamabad, headed by the Accounts Officer, namely, Mr. Muhammad Mushtaq and, after conducting probe for about a month it raised serious objections to many bills and directed the Director, Quetta Centre, for refund/deposit of the excess amount upon which he refunded a sum of Rs,4,43,972 on account of various bills and in this respect the appellant never refunded anything on this score and for that matter nothing was proved against him as outstanding. Later on, the appellant was transferred from Quetta to Islamabad after auditing accounts of the Quetta Centre by the Audit Party for the third time on 8-9-1996 and he reported arrival at Islamabad and submitted his joining repott but again on 31-10-1996 the services of the appellant were placed at the disposal of the Pakistan Institute of Nuclear Sciences Technology, hereinafter PINSTECH, copies of the transfer orders are Annexures "E" and "F" and on 23-11-1996 an Enquiry Committee was constituted by the Director Establishment and on the said date the charge-sheet was issued by.
The Secretary, Pakistan Atomic Energy Commission, in the capacity, of an authorised officer on 13- 1-1997 and one Wisal Ahmed, Senior Accounts Officer, Audit, was also nominated for association with the Enquiry Officer who was also a member of the Fact Finding Committee, referred to above.
The appellant submitted his reply to the Charge Sheet and the relevant documents in this respect are marked as Annexures G, H, J and K. It is further stated that after receiving the reply to the charge-sheet the appellant was called by the Enquiry Committee which directed him verbally about conducting the enquiry at Quetta. The Enquiry Committee, however, did the needful but:-- "without informing or calling up the appellant." ' and hence the proceedings were conducted ex parte. A show-cause notice was accordingly issued to the appellant on 10-4-1997 by the Authorised Officer and the appellant submitted his reply thereto alongwith the documents, he also called the appellant for personal hearing wherein he satisfied the Authorised Officer in presence of the Director Accounts and the Director Establishment who both stated before the Authorised Officer that there was no misappropriation on the part of the appellant when they were directed to this effect by the Authorised Officer, except that the appellant had committed only irregularities upon which the Authorised Officer remarked that it was a routine irregularity/matter but despite this he (the Authorised Officer) awarded him the penalty of "withholding of four increments" and submitted his report to the Member (Admin.) who was actually the authority for the appellant and the Authority converted the minor penalty of withholding of four increments into major penalty of "premature retirement" vide the impugned order, dated 11-6-1997.
4. The respondents have contested the appeal and filed parawise comments wherein they have taken serious exceptions to the allegations/averments made by the appellant in this appeal, including the preliminary objection to the effect that the appeal was time barred by 33 days and neither any application for condonation of delay has been filed nor any reasonable explanation has been given.
5. Now adverting to the filing of the appeal we find that it was reportedly and admittedly received in the Tribunal by post on 10-9-1997 as is evident from the use of the words:-- "Presented by Post" ' and duly supported by the signature of the then Registrar on the memo. Of appeal. One wonders that how the appellant received the order, dated 8-8-1997 on 13-9-1997 and in face of positive proof regarding receipt of the service appeal in this Tribunal by post on 10-9-1997 the word "allegedly received on 13-9-1997" were written in blue ink in the noted, dated 16-9-1997 by the Assistant Registrar. The relevant para.3 of the note reads:-- "The appellant preferred a departmental appeal on 27-6-1997 (pp.217-225), which has been rejected on 8-8-1997 (P-227).
' A close scrutiny of the full stop (.) indicates that it has been manipulated/interfered with and made comma (,) prefixing the following words:-- "allegedly received on 13-9-1997." ' with blue ink (the same ink in the signature of the Assistant Registrar).
6. Now a question arises as to who has inserted these words:--"allegedly received on 13-9-1997."
' The short answer is that these words were written by the author of the note and none else. This sort of dealing renders the whole show as doubtful.
7. Now coming to the factual side in the light of the scrutiny of the pleadings of the parties, it appears that the appellant stands condemned unheard as on many a times reliance has been placed on the reports of a Fact Finding Committee which cannot be made a ground for condemnation of the appellant and further that onus of proof lies on the departmental authority to show that the enquiry was conducted perfectly in accordance with the rules, on the subject i,e,.
Efficiency and Discipline Rules, 1973 whereas the facts available on the file do not show like that.
Photostat copies of the statements of the prosecution witnesses placed on the file by the appellant indicate that the examination of the witnesses having not been properly conducted/recorded so much so that it is not in narration form but, on the other hand, is in question form whereas after examination of a witnesses which is called "Examination-in-Chief" the opposite party/accused's right begins in the form of cross-examination and in his own language and it is his discretion to put any relevant question to the witness and not the otherwise. The statements do not indicate that the appellant was associated during the examination of the various prosecution witnesses. The question No,1 for instance put to Dr. Muhammad Ilyas, ex-Director-General, Quetta, recorded on 18- 1-1997 is of no use to the prosecution being totally unaware about the facts as per his answer and at top of the statement at page 217 the word "Confidential" has been typed. The departmental enquiry is not a confidential matter. The record must show involvement/association of the accused. The enquiry proceedings are of judicial nature in which the presence of an accused official is a must for the reason that the departmental authority is the first stage of judicial proceedings which must be conducted perfectly in accordance with the requirements and dictates of law and not whimsically, in the latter case it loses its legal. Validity. In case of doubtful proceedings the benefit goes to the accused. A scrutiny of the appeal as well as parawise comments and rest of the documents annexed by both the parties lead us to a conclusion that there was no control whatsoever by the competent authorities whether high or low and everybody was free to play havoc with the public funds with no control whatsoever on the part of the departmental authorities. The entire proceedings show hotch-potch affairs in all the offices whether higher or lower which state of affairs adversely reflects on all concerned. There should be strict control under the law and public funds/monies should not be misused. It is only possible when the competent authorities controlling the offices are vigilant and conscious about the strict discipline and control to curb the malpractices with respect to misappropriation of the funds.
Slackness on the part of the controlling authorities affords a free hand to the officials below who do not work honestly and efficiently. The Honourable Supreme Court of Pakistan has taken serious view about examination of witnesses on the basis of, questions/questionaire in
(i) 1996 SCMR 802;
(ii) 1993 SCMR 1440; and
(iii) 1993 PLC (C.S.) 1140
(iv) which can be attracted to the facts of the instant appeal. Examination of a witnesses must be before an accused and the record must show the presence of the accused. Issuance of a second or final show-cause notice is also a must and in this respect no leniency can be made for its dispensation as has been held by the Honourable Supreme Court in:--
(i) PLD 1981 SC 179;
(ii) 1997 PLC (C.S.) (SC) 424; and
(iii) PLD 1977 SC 182. ' and supply of a copy of the enquiry report is also considered essential without which the proceedings were quashed by the Honourable Supreme Court in its judgments contained in:--
(i) PLD 1981 SC 176;
(ii) 1987 SCMR 1562 and (iii) 1996 SCMR 201.
' It appears that the appellant does not appear to be instrumental in the cases instituted against him. There are other incumbents in the hierarchy of Administration who also played in one Form or another major role in commission of the irregularities/misappropriation of public funds but it appears that they have let off and not questioned. This sort of conduct of proceedings in violation of Article 25 of the Constitution of the Islamic Republic of Pakistan is discriminatory treatment and is in no case, justified under the law but rather reflects adversely on the administration/competent authorities who are legally bound to do equal justice to all concerned and not to discriminate some vis-a-vis others. The departmental authority acts as a first Court for its subordinates and is supposed to do as much justice as it required by the legal forums/Courts.
8. It is an established principle of law that every order whether judicial or administrative must be a speaking one as per the requirement of section 24-A, of the General Clauses Act, 1897, and the law laid down in PLD 1998 Lahore 1. The authorities are legally bound to discharge their duties in all fields of activities, including the disciplinary proceedings, perfectly in accordance with the law as has been held in 1997 PLC (CS) 929.
9. In view of the documents and hard facts available on the file the prosecution/Administration appears to have not brought home the charge of compulsory retirement to the accused appellant.
It also stands crystal clear and proved from the record that the Authorised Officer awarded minor penalty by withholding four annual increments whereas the Authority without serving the appellant with a show-cause notice as to why the minor penalty awarded by the Authorised Officer should not be enhanced, converted into major penalty and thereby the appellant was condemned unheard. It has been held in 1993 SCMR 122 that under rule 6-A of the E&D Rules, 73 no adverse order to the interest of an accused-officer could be passed without affording him an opportunity of personal hearing if the Authority intended to review the penalty specially in case of enhancement of the penalty. It has also been held in PLD 1969 Pesh. 147 that the Fact Finding Enquiry Committee's Report cannot be considered against an accused incumbent when the proceedings were conducted at his back.
10. Since the appeal is being accepted, therefore, the delay, if any, in filing the appeal is hereby condoned in the interest of justice.
11. Pursuant to the above and after analyzing all the pros and cons of the departmental proceedings we are inclined to accept the appeal, set aside the impugned order with a direction that the appellant shall be reinstated in service with all back benefits. However, the Administration/competent authority shall be at liberty to proceed against the appellant afresh if it so likes but in that event the departmental enquiry shall be conducted meticulously/strictly in accordance with the requirement of law. i,e,. The Government Servants (Efficiency and Discipline)
Rules, 1973, in which the accused must be associated in the proceedings and allowed to cross- examine the witnesses appearing against him. There shall be no order as to costs. Copies of this judgment shall be sent to all concerned.