1. ' ABDUL MAJID KHANZADA (CHAIRMAN).---Being dissatisfied with the impugned, appellate Order bearing No,4491-HVC (Service)/97-1346, dated 1-11-1997 passed by the respondent No,2 the appellant filed this service appeal on 26-11-1997 within prescribed period of limitation.
2. ' The facts according to the appellant are that he joined as Tapedar, in Hyderabad District in the year 1980. And his service record is unblemished. He was suspended vide order, dated 13-2-1995 by the respondent No,2 alongwith the charge-sheet. He submitted his explanation on 1-3-1995, denying the same. On 13-4-19095, the respondent No,2, appointed the Additional City Magistrate, Hyderabad as Inquiry Officer, who allegedly conducted and concluded the inquiry arbitrarily to the extent that he was not allowed to cross-examine any witness. On 24-1-1996, the respondent No,1, issued a show-cause notice, levelling the same charges against the appellant, as contained in the aforesaid charge-sheet, informing him that the Inquiry Officer has found him guilty and proposed major penalty. It was replied on 4-2-1996 denying the charges, once again. The respondent No,1, issued a final show-cause notice, dated 10-4-1996 which was replied. He was awarded the major penalty of dismissal from service vide order, dated 2-6-1997. The appellant preferred a departmental appeal to respondent No,2, who reduced the penalty into compulsory retirement vide orders, dated 1-11-1997, hence this appeal.
3. The main thrust of the counsel for the appellant was that there are grave errors of law in the disciplinary proceedings against the appellant under Efficiency and Disciplinary Rules, the charge- sheet is to be issued by the Authorised Officer, whereas it was issued by the 'Appellate Authority'.
4. Suspension orders are issued by or under the authority of the comeptent/appointing authority, whereas suspension order too was issued by the Appellate Authority'. The Inquiry Officer is appointed by the Authorised Officer, whereas, in this case inquiry Officer was appointed by the appellate Authority. Therefore, the respondents failed to abide by the prescribed procedure and the entire proceedings suffer from major legal lacunae. Hence, the original and appellate orders are liable to be set aside. In support of his above contentions, he placed reliance on the following citations:-- .
5. ' PLD CS 1987 Page 522 relevant pages 525 and 526 (curium non judicial)
6. ' 1955 PLD SC page 671. 1990 SCMR page 999.
7. ' 1980 CLC page 273 rel. Page 275.
8. ' SCMR 1993 page 956, rel. Page 971.
9. ' Corning to the merits, he stated that 'no certificate' bears the signatures of the appellant. 4 other persons, allegedly involved in the same matter have already been acquitted. According to him, the main culprit was the Registrar concerned, who registered the sale-deed, without verification from the concerned Revenue Office and registered it on the basis of time-barred , documents. In the Inquiry report, nothing is mentioned about the concerned land but Form VII relates to some other land. He also contended that the Inquiry Officer has no power to propose any penalty. Action taken against the appellant was predetermined as per wording of the charge-sheet.
10. ' Learned A.A.-G. Argued briefly and basically remained confined to the written statement of the respondents. He read from the report of the Inquiry Officer who has reported that concerned land was given to the owners for permanently non-agriculture purposes in the year 1927-28, whereas Mst. Islam Khatoon the alleged owner, according to her National Identity Card was born in the year 1942. Naturally she could not own land since 1911 and 1927-28 and, therefore, the concerned Revenue Record/entries therein are forged and manipulated.
11. ' According to him, appellant was responsible being the concerned Tapedar for illegal transfer of valuable land at Gunju Takkar to the land grabber/land mafia and was rightly awarded the penalty of compulsory retirement from service. He, therefore, pleaded that this appeal may be dismissed.
12. ' On a query from the Senior Member, the A.A.-G. In consultation with the departmental representative confirmed that in respect of the appellant, Deputy Commissioner, Hyderabad, is the Competent Authority and ADC-1 (Additional Deputy Commissioner I) is the Authorized Officer. The Inquiry Officer was Mr. Nadeem Irshad, Assistant Commissioner IS. D.M. MATLI (Badin) who was earlier SDM Taluka Hyderabad as per clarification of the departmental representatives.
13. ' On yet another query, from the Senior Member, about the tenure of the appellant in the concerned Tappa he stated that as per page 3 of the report of Inquiry Officer the appellant's tenure of posting was from 1-11-1992 to 5-6-1993 i,e, 7 month only. He was also questioned about the fact whether the appellant signed any certificate (of permission to sell etc.) which is categorically denied by Advocate of appellant, he said as per report of the Inquiry Officer the sale certificate was issued by Munshi Lai Bux Tapedar, however, the appellant has issued 'copy of the same' .
14. ' We have gone through the arguments of either sides carefully and dispassionately and also perused the citations quoted, written statement of the respondent and with the help of the counsels perused the record produced in this appeal.
15. ' We regret to observe that most of the disciplinary action cases fail to pass the litmus test of 'observance of the prescribed legal procedure' advertently or inadvertently due to ignorance of law on the subject i,e, the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, whereunder the prescribed procedure is described at great details, step by step. The Sindh Civil Servants Act was enacted in the year 1973 and so also the Efficiency and Disciplinary Rules were framed in the same year i,e, 1973. Despite the loss of 26 years, even senior officers/very responsible officers, like Deputy Commissioner incharge of a District and Commissioner incharge of a full division comprising of several revenue districts, often fail to distinguish between the Authorised Officer next higher Officer, incharge of administration, below the (appointing/Competent) authority, the Authority i,e, (Competent/Appointing Authority) and the Appellate Authority. While ignorance of law is no excuse even for a common/ordinary man, it is highly lamentable in senor responsible officers like Commissioner/Deputy Commissioner, which makes of their selection and postings on consideration other than merit. If in the case of the appellant, the Authorised Officer was Additional Deputy Commissioner (I) the Deputy Commissioner Hyderabad was the Authority and the then Commissioner, Hyderabad was the Appellate Authority, as confirmed by the A.A.-G., after consultation with the departmental representative who was present in the Tribunal on the date of hearing, the charge-sheet as well as the suspension order of the appellant signed by the then Commissioner Hyderabad (Mr. Abdul Ghaffar Soomro) are a nullity in law and call for disciplinary action against the signing authority by the Competent Authority, because both were required to be signed, with by A.D.C.-1 Hyderabad, as per provisions of Rules 5(1) and 6(1) of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973. Similarly, the Inquiry Officers, should have been appointed by the ADC-I Hyderabad and the then Commissioner, Hyderabad had no legal powers under the said Efficiency and Discipline Rules to appoint anyone as Inquiry Officer--being the 'appellate authority'. However, we do not agree with the contention of the appellant/his counsel that the appellant was not afforded any opportunity to cross-examine the P.Ws. The Inquiry Officer on Page-I of this report paras. (2)(4) has clearly recorded:-- "Opportunity to all accused officials to cross-examine to witnesses."
16. If the then Commissioner, Hyderabad had suspended the accused/signed the charge-sheet, appointed the Inquiry Officer, then de facto' he assumed the role of the Authorised Officer and if so, the Senior Member Board of Revenue would become the 'Authority' and then Chief Secretary--the appellate authority.
17. ' We have also noted with regard that whereas the Authority can assume the role and powers of the Authorised Officer under the provisions of Rule 4-A(2) of the said Efficiency and Discipline Rules, the appellate authority cannot do so and would defeat the entire scheme of law. Since the respondents have flouted the entire scheme of the said Efficiency and Discipline Rules, violated grossly the various provisions of law--the orders passed by them--the original as well as the appellate orders cannot be maintained/sustained under law and we are left with no other option but to set aside the same. However, it shall not be a bar to respondents for de novo proceedings if they so desire as the matter prima facie involves, loss of valuable Government land but with a word of caution about the expediency of the same within 3 months from the announcement of this judgment, in a transparent way with due compliance of all the legal formalities, on day to day basis.
18. ' Consequently, upon setting aside the judgment/orders, the appellant is to be reinstated in service.
19. The intervening period shall be treated as 'leave due'.
20. ' There is no orders as to the cost.