1. ' SYED MANSOOR HUSSAIN GILLANI, J.----The petitioner has invoked the extraordinary jurisdiction of this Court under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 to impeach the order passed on December 28, 1992 by the Minister Forest whereby he -was dismissed from his service and the Collector, Land Revenue. Muzaffarabad was directed to recover from him an amount of Rs,7,97,176 as arrears of the land revenue.
2. '2. Admitted facts are that the petitioner was inducted in the service of the AKLASC in the year, 1975 as Forest Supervisor. He got promotion as Supervisor Grade-A in the year, 1988.. He served the AKLASC in different capacities at various places in Azad Kashmir. The present dispute pertains to his tenure as Sale Assistant, Muzaffarabad, the post against which he was posted on November, 21, 1988. He was served with a charge-sheet on February 4, 1992 by Mr. Muhammad Yunus Awan, Additional Commissioner, Development in his capacity as Authorised Officer. The charge-sheet contained allegations of a loss of Rs,9,71,063 to the department. The authorised officer in the charge-sheet which he issued to the petitioner on February 2, 1992, directed him to submit his written reply within 14 days before Mr. Rashid Ahmed Katal, Mangaging Director, AKLASC and Chairman, Inquiry Committee.
3. ' The petitioner availed this opportunity and submitted his reply to the charge-sheet on February 22, 1992 in which he specifically denied all the allegations levelled against him. He also requested the Chairman, Inquiry Committee to disassociate one Muhammad Rashid Khan, Accountant AKLASC from the body of Inquiry Committee as, according to him, he was responsible for the loss.
4. The petitioner also expressed his no-confidence in the Inquiry Committee on account of certain reasons mentioned by him in his written reply to the charge-sheet. According to him, he was involved in a false case in order to save the skin of some other persons responsible for the loss to the department.
5. ' In the light of Inquiry Report, another show-cause notice was issued by Muhammad Yunus Awan in his capacity as authorised officer to the petitioner on June 1, 1992 in which besides previous allegations, it was alleged that he out of the misappropriated amount of Rs,10,74,295, had deposited an amount of Rs,2,77,119 on October 8, 1991, thus, the balance amount of Rs,7,97,176 was recoverable from him.
6. ' The petitioner submitted his written reply to the said notice within the stipulated period in which he once again expressed his no-confidence in the proceedings which were conducted by the Inquiry Committee besides refuting all the allegations and charges attributed to him in the second show- cause notice. He totally denied to have ever deposited an amount of Rs,2,77,119 in any Bank. He also repeated his allegation that in order to save the skin of some other persons, it is wrongly attributed to him that he had deposited and amount of Rs,2,77,119, in the Bank on October 8, 199k. He also lodged a complaint with the Authorised Officer, in his reply that he had not been furnished with the copies of the documents which had been relied upon by the Inquiry Committee in its report.
7. ' Finally on December 28, 1992, the Minister Forest in his capacity as Authority under the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 (hereinafter shall be referred as Discipline Rules) passed the impugned order whereby the petitioner was removed from his service as well as an amount of Rs,7,97,176 was ordered to be recovered from him as arrears, of the land revenue. This order was assailed by the petitioner through a Constitutional petition before this Court on February 11, 1993. The learned Judge seized of the petition felt it appropriate to invite comments from the department before passing any appropriate order on this petition.
8. ' The learned counsel for the respondents filed their comments on March 3, 1993. In the comments, the maintainability of the writ petition was challenged on the ground that the petitioner had got a right of-appeal before the Board of Directors, AKLASC. Without availing that remedy provided by the relevant statute, the writ petition was not maintainable. The learned Judge agreed with the suggestion of the learned counsel for the respondents and consigned the writ petition to the record room and directed the petitioner to seek the redress of his grievance through available departmental remedy before approaching this Court.
9. ' The petitioner thereafter filed an appeal before the Board of Directors, AKLASC on March 18, 1993.
10. He also made a request in it that the operation of the impugned order, dated December 28, 1992 be suspended to the extent of recovery of the amount till the disposal of his appeal. However, on July 25, 1993, the Collector, District Muzaffarabad was moved by the AKLASC Authorities seeking recovery of the amount from him as arrears of the land revenue. The Collector, District Muzaffarabad, on their application, directed the Tehsildar/Assistant Collector Grade-I, Muzaffarabad for the recovery of the amount as arrears of the land revenue from the petitioner.
11. The petitioner was thus, again constrained to seek the redress of his grievance through the instant writ petition on October 13, 1993.
12. ' During the pendency of his writ petition before this Court, the Appeal Committee constituted by the Board of Directors, AKLASC served a notice upon the petitioner on November 14, 1993 for the hearing of his departmental appeal. The petitioner submitted his reply before the Committee that under the compelling circumstances he has invoked the writ jurisdiction of the High Court and has also secured a stay order. He also submitted that the Appeal Committee constituted for hearing of his appeal was headed by Mr. Rashid Ahmed Katal who by that time, had been elevated as Managing Director, AKLASC, is not acceptable to him as he had acted head of the Inquiry Committee against him. The appeal of the petitioner was ultimately dismissed by the Board of Directors, AKLASC on May 12, 1994. The petitioner thereafter amended his writ petition and challenged this order with the permission of the Court through the amended writ petition.
13. ' In the written statement, the respondents have denied any bias of the Members of the Inquiry Committee about the petitioner. They have also denied that inquiry was not conducted in accordance with the law. According to the respondents, the impugned order was passed in accordance with law and rules enforced and the objection about the conduct of the Inquiry Committee and authoriased officer, in the memorandum of the writ petition, was unfounded and without any lawful justification.
14. ' In the background of these facts, lengthy arguments were. Addressed by the learned counsel for the parties. They also filed their written arguments in the Court in which the points pressed by them during their oral arguments were repeated by them.
15. ' Mr. Abdur Rashid Abbasi, learned counsel for the petitioner assailed the impugned order both on regal grounds as well as on merits. According to him, Inquiry Committee was not lawfully constituted as such it was not competent to inquire into alleged allegations against the petitioner.
16. Impugned order based on the report of the illegally constituted Inquiry Committee, is unsustainable. According to the learned counsel, this Inquiry Commission was appointed by Muhammad Yunus Awan in his capacity as authorised officer. The very appointment of Muhammad Yunus Awan is bad in law because prior to his appointment as authorised officer, he had conducted the inquiry in the matter and his inquiry report was also relied upon by the Inquiry Committee in para. 4(2) of its report dated 29-4-1992. Moreover, his son was involved in the case and was also included in the list of accused employees of the AKLASC. He, therefore, was not independent and impartial person to assume and play the role of a Judge in his capacity as authorised officer. Moreover, according to the learned counsel, he being personally interested in the result of the proceedings on account of involvement of his son, Masud Iqbal, Junior Clerk, was debarred under rules to act in the case as authorized officer. It is pertinent to mention here that this ground is specifically raised in the writ petition which is supported by an affidavit. The respondents have denied this ground in their written statement but no counter-affidavit has been filed by them.
17. In the absence of the counter-affidavit, we have no option left but to accept this fact that Masud Iqbal who was also facing charges alongwith the petitioner and others, is the real son of Muhammad Yunus Awan Authorised Officer. The respondents implidely, in our view, have admitted Masud Iqbal as son of Muhammad Yunus. However, Masud Iqbal was acquitted by the Inquiry Committee as such his guilt was not under consideration before the authorised officer.
18. ' The learned counsel for the petitioner besides relying on the provisions of the Azad Jammu and Kashmir (Efficiency and Discipline) Rules, 1977, relied on Rafique Akhtar Choudhary's case reported as PLD 1982 SC (AJ&K)
124. In this case the seniority of Naib Tehsildar, determined by the competent authority, was set aside by the Hon'ble Apex Court of Azad Kashmir simply on the ground that the officer who determined the seniority, his son was amongst the Naib Tehsildar whose seniority was under-consideration. It was held by the Hon'ble Supreme Court that:-- "However, a person be honest and independent, it is always against rule of propriety to associate himself when his personal interests were involved in a particular case."
19. ' His second objection is that the inquiry was conducted in violation of the relevant law and well recognised principle of natural justice as the same was conducted at the back of the petitioner who was not afforded reasonable opportunity of hearing and was not provided an opportunity to cross-examine the witnesses who appeared and deposed against him nor he was provided with incriminating material or evidence used against him or any opportunity of producing evidence was given to him. He in support of this argument referred before us three applications which were received through post. According to the learned counsel, these applications prima facie, have been written by the same person and contained almost the same allegations. The alleged authors of these applications never appeared before the Inquiry Committee but the Committee relied upon their applications as is apparent from para 4(11-2) of the inquiry report. According to him, these three applications if left out from consideration then no other evidence is available against his client. He further argued that, according to the roaster of duties, his client had no business to receive the alleged misappropriated amount from the customers and later its deposit in the Bank.
20. It was the duty of some other persons but is wrongly attributed to his client. The learned counsel further argued that in fact Inquiry Committee was under the influence of the fact finding report which was earlier prepared by Muhammad Yunus Awan and Abdur Rasheed Katal, Chairman of the Inquiry Committee. Under the influence of these reports, the Inquiry Committee submitted fresh report before authorised officer who illegally by assuming the role of a Judge, made recommendations against his client. In support of his claim, he relied on para. 4(2) of the inquiry report wherein it is laid down that:--{{URDU TEXT }} ' Again in para. 4(7), the Inquiry Committee has mentioned about the report prepared by Muhammad Yunus Awan in the following words:--{{URDU TEXT }} ' Besides the above-referred objections about the conduct of the Inquiry Committee, the learned counsel seriously challenged its Constitution under the provision of the Discipline Rules, 1977.According to him inquiry was conducted against 9 employees of the AKLASC. Two out of nine employees were General Managers Finance and Accounts. The head of Inquiry Committee was Mr. Rashid Ahmed Katal who was himself the General Manager of AKLASC. The other member was Abdul Qayyum Mughal, a Senior Budget Officer, Finance Department. The members of the nquiry Committee, according to the learned counsel, were not senior in rank to the above-referred two accused employees of the AKLASC who were General Managers Finance and Accounts. Therefore, the very constitution of the Inquiry Committee was against the spirit of Rules.
21. ' Raja Muhammad Hanif Khan, learned counsel for the respondents in his lengthy arguments supported the impugned order.
22. ' During the pendency of the writ petition, before us, an affidavit was filed by one Azhar Mahmood as Secretary of the AKLASC Board to the effect that Abdul Rashid Katal was an officer of Grade-20 whereas above-referred two persons, namely, Mehmoodul Hassan and Saeed Ahmed were General Managers Finance and Accounts AKLASC respectively in Grade-18. He in support of the affidavit also filed in the Court copies of two Notifications No,Admn./A-20( 11)/V/90, dated 16-9- 1990 and No,Admn./A2(17)11/V/96, dated 3-4-1996. According to first notification, Rashid Ahmed Katal was Conservator of Forests in B-18 when he was sent on deputation to AKLASC and posted as General Manager AKLASC, Mirpur in his own pay and scale. Through the second notification, the said Rashid Ahmed Katal, Chairman of the under-challenged inquiry committee was promoted to a post in Grade B-20. The notification was given effect from May 4, 1995. The same ground was taken by the learned counsel for the respondents to justify the constitution of the Inquiry Committee.
23. ' In the light of the above-referred arguments, it was argued by the learned counsel for the petitioner that impugned order is not maintainable as it is contrary to the provisions of Discipline Rules, 1977, besides it is also mala fide. He requested that his client be reinstated in service with all back benefits. On merits of the case, the learned counsel argued that there is no material or evidence on the relevant record to substantiate the allegation made against his client.
24. ' While opposing the arguments, Raja Muhammad Hanif Khan the learned counsel for the respondents argued that the petitioner has got alternate remedy before the Labour Court under the Azad Jammu and Kashmir Industrial Relations Ordinance, 1974. His writ petition is, therefore, liable to be dismissed. According to him, the petitioner was employee of Grade B-11 in the services of AKLASC. Irrespective of this fact that what amount he was drawing as his pay, he was not holding any administrative post in the affairs of the corporation, therefore; was covered by the definition of workman. He in support of his contention referred the following authorities:-- (1)" 1983 PLC (Labour) 887, 498;
(2) 1992 PLC (Labour) 632;
(3) 1997 PLC (Labour) 367;
(4) 1998 PLC (Labour) 390; and
(5) 1999 PLC (Labour) 428.
25. ' In the light of the objection raised by the learned counsel for the respondents, the question which needs determination is as to whether the present writ petition is maintainable in the light of the facts and circumstances of the case.
26. ' The learned counsel for the respondents argued that the petitioner has got an alternative remedy available before the Labour Court under section 30 of the Industrial Relations Ordinance, 1974. He in support of his contention relied upon certain cases. We have gone through the report of these cases. The dispute in these cases, was raised by the employees of some Textile Mills, Pakistan Railway and employees of different banks who under law could raise their grievance under the Industrial Relations Ordinance, 1969 before the Labour Court. These authorities, therefore, have got nothing common with the present case.
27. ' AKLASC, no doubt, is a statutory Corporation and is functioning under the supervisory control of the Government. The high-ups of this Corporation are appointed through transfer by the Government out of the employees of the Forest Department. Thus, in our view, the employees of the Corporation are performing their functions in connection with the affairs of the State within the meaning of section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. For this purpose rightly the Civil Servants Act and Discipline Rules under the authority of section 23 of the Civil Servants Act, 1976, have been made applicable through adoption by the Board of Directors of AKLASC. The learned counsel for the respondents has rightly referred the case titled Muhammad Rashid Choudhary v. Chairman, AKLASC and others (1993 PLC (C.S.) 1201) wherein the apex Court has held that the Members in the service of the AKLASC are governed by appropriate Orders/Rules of the Government. The same view was expressed by this Court and apex Court in a recent judgment titled Raja Ali Asghar v. Muhammad Hafeez Ullah. Even otherwise the petitioner does not fall within the definition of worker or workman as contained in the Industrial Relations Ordinance, 1974. According to that definition a person who is working in supervisory capacity or drawing his wages exceeding Rs,600 per month cannot avail the remedy under the Industrial. Relations Ordinance, 1974.
28. ' There is no cavil that at the time when the present proceedings were initiated against the petitioner, he was an employee of the AKLASC as Supervisors in Grade-A in the basic pay scale 13, therefore, was not entitled to avail remedy under the Industrial Relations Ordinance, 1974 before the Labour Court. This view is fully supported by the authorities referred by the learned counsel for the petitioner which shall be discussed in upcoming part of this order.
29. ' In 'Personnel Manager,' Bata (Pakistan) Ltd., Lahore v. Muzaffar Ali (1985 PLC 786), it was laid down that a foreman of Bata Shoe Company was not workman as he was drawing his pay at Rs,1,142 per month.
30. ' In (1984 PLC 1105), a Supervisor of Bahawalnagar Sugar Mills was not treated as worker or workman as he was drawing his pay above Rs .800 .
31. ' In the light of above reasons, in our view. The petitioner was not entitled to seek remedy before the Labour Court under the provisions of the Industrial Relations Ordinance, 1974. In our view, as all the proceedings right from the appointment of authorised officer up to the passing of the impugned order by the Authority, had been taken in total disregard of the provisions contained in the Discipline Rules, 1977. This petition, even otherwise, is maintainable before this Court on the grounds that impugned order was the result of proceedings conducted in total disregard of the Discipline Rules.
32. ' The extraordinary writ jurisdiction made available to this Court under section 44 of the Azad Jammu and Kashmir Interim Act, 1974 could not be treated as substitute for an appeal or revision.
33. This jurisdiction can be availed favourably in extraordinary circumstances by showing that the impugned order under challenge is wholly without jurisdictional competence.
34. ' In a case titled 'Income Tax Officer, Central Circle-III, Karachi v. Eruck Maneckji and others' (1991 SCM R 1447), it was held that as the Income Tax Officer had acted in arbitrary or oppressive manner against the respondent therein, his writ petition was maintainable despite the fact that the revision petition was competent under the provision of the Income-tax Act (XI of 1922).
35. ' In the present case, appointment of authorised officer and Inquiry Committee, were directly in conflict with the provisions of the Discipline Rules, therefore, all the proceedings conducted against the petitioner under the provision of Discipline Rules, were coram non judice. Even otherwise the apex Court of Azad Kashmir in a case titled 'Messrs S.S. Salar & Co. v. Ch. Muhammad Sarfaraz and 2 others' (PLD 1984 SC (AJ&K) 77), has held that the High Court will not entertain the writ petition when any other appropriate remedy is yet available, is not a rule of law barring the jurisdiction of the High Court but a rule by which the Court regulates its own jurisdiction. The objection in respect of alternate remedy was rejected and the following guiding principle was laid down in para. 14 of the order in the following words:-- "14. Next is the point with regard to the availability of an alternate remedy. The adequacy of this remedy ought to be viewed or judged in the terms of comparative speed, expenses, convenience and effectiveness involved in case relief is allowed by the High Court in exercise of its Constitutional jurisdiction. The High Court would generally decline to issue the high prerogative writs in cases where alternative and equally efficacious remedies are available. But then it does not mean that there is any Constitutional bar to the High Court in exercising such a jurisdiction or authority. Nor is the rule of alternate remedy inflexible. The fact that High Court will ordinarily decline to step in where the alternate remedy is available is not due to their want of jurisdiction but for the reasons of expediency. Each case is to be decided in light of its accompanying facts and circumstances. The High Court will not hesitate to exercise its extraordinary. Constitutional jurisdiction where refusal to do so, in its estimation, would prolong the agony. In view of the peculiar circumstances of this case and considering the nature of the relief claimed therein rejection of the appellants' writ petitions by the learned High Court was a wrongful exercise of the jurisdiction vested in it under law."
36. ' In the present case, under the provisions of the Discipline Rules, before awarding major penalty of removing from service and passing order for recovery of the amount of alleged loss to the department, the authority was bound to provide hearing to the petitioner. Admittedly there is a presumption of regularity attached to all the official acts uptil and unless the presumption is rebutted, But in this case, it is "admitted fact that the petitioner was not given hearing before passing impugned order against him.
37. ' According to the learned counsel, the objections raised on behalf of the petitioner about the appointment of Mr. Muhammad Yunus Awan as authorised officer and then constitution of inquiry committee by him, have got no force because the Board of Directors AKLASC had accorded approval to proceed against its employees who were held responsible in causing loss of lacs of rupees to the AKLASC. Out of accused employees, five were of gazetted cadre, drawing pay in Grade-17 and above whereas four officers including the present petitioner were from the non- gazetted cadre. According to him, Mr. Rashid Ahmed Katal at the relevant time was drawing his pay in B-19. Therefore, he was definitely senior in rank than Masudul Hassan and Saeed Ahmed who were drawing their pay in B-18. Alternatively his argument was that this objection would have been available to Masud-ulHassan and Saeed Ahmed and not to the present petitioner. Both these persons had never objected to the appointments of Mr. Rashid Ahmed Katal and Mr. Abdul Qayum Mughal as Inquiry Committee. His further argument is that the present petitioner had not raised this objection in the memorandum of appeal before the Board of Directors, AKLASC, therefore, by his conduct he is estoppel to raise this objection in a writ petition before this Court. According to him, the statements of the witnesses were recorded in his presence but he has not exercised his right of cross-examination, therefore, he cannot blame anyone else except himself for the loss which he ultimately suffered on the basis of inquiry report.
38. ' About the appointment of Muhammad Yunus Awan as authorised officer, the learned counsel argued that the said officer was an honest officer of the department who played impartial role as authorised officer in the case. According to him, in the light of the inquiry report even any other authorised officer would have recommended the same penalties for the petitioner which were recommended by Muhammad Yunus Awan. No bias can be attributed to him, therefore, no benefit can be given to the petitioner simply on the ground that his son was also one of those employees who were facing accusation of causing loss of lacs of rupees to the department.
39. ' After taking into consideration the arguments addressed by the learned counsel for the parties in the light of the relevant record of the case, we are of the view that there is no need to enter into the merit of the case as in our view, the proceedings against the petitioner have been conducted in flagrant disregard of the mandatory procedure prescribed in the relevant rules which illegality alone has vitiated the whole proceedings rendering the impugned order passed in consequence thereof, null and void.
40. ' The Discipline Rules have been made applicable through adaptation by the Board of Directors, AKLASC. It would, therefore, be proper to reproduce the Discipline rules for the sake of further discussion:-- Initiation of proceedings.---(1) If on the basis of its own knowledge or information placed before it the authority is of the opinion that there are sufficient grounds for proceeding against a civil servant, or where in a case in which Anti-Corruption Committee/Committees set up by the Government, from time to time has decided to take departmental action, it shall direct the authorised officer to proceed against such civil servant.
(2) Where no authorised officer stands designated in respect of the accused civil servant, the authority shall simultaneously appoint an officer senior in rank to the accused, to perform the functions of an authorised officer.
6. Procedure to be observed by the authorised officer.--(1) In a case where a civil servant is accused of subversion, corruption or misconduct, he may be placed under suspension by the authority, or with the prior approval of the authority, by the authorised officer, or he may be required by the authorised officer to proceed on leave: ' Provided that the continuation of, suspension, if ordered by the authorised officer, or grant of any extension in leave shall require the prior approval of the authority after every three months.
(2) Within three days of the receipt of the direction from the authority under rule 5. Or within such further period as may be allowed by the authority at the written request of the authorised officer, the authorised officer shall decide whether in the light of the facts of the case or in the interest of justice, an inquiry is necessary.
(3) If the authorised officer decides that it is not necessary to have an inquiry conducted against the accused, he shall---
(a) inform the accused forthwith, by an order in writing, of the action proposed to be taken in regard to him and the grounds of the action; and
(b) given him a reasonable opportunity of showing cause against that action within a period of fourteen days from the date of receipt of order under clause (a): ' Provided that no such opportunity shall be given where, in the interest of security of Pakistan/Azad Kashmir or any part thereof, it is not expedient to do so but before denying this opportunity, the authorised officer shall obtain the prior approval of the authority.
(4) Within seven days of the receipt of the explanation, if any, of the accused, or within such further period as may be allowed by the authority at the written request of the authorised officer, the authorised officer shall determine whether the charge has been proved. If, it is proposed to impose a minor penalty he shall pass orders accordingly. If, however, the authorised officer considers it to be a case for a major penalty, he shall forthwith forward the case to the authority alongwith the explanation of the accused and his own recommendations regarding the penalty to be imposed.
(5) If under sub-rule (2) the authorisaed officer considers that an inquiry is necessary, he shall appoint an Inquiry Officer or an Inquiry Committee consisting of two or more persons who or one of whom shall be of a rank senior to that of the accuased or if there are more than one accused, senior to all the accused.
(6) Where an Inquiry Officer or an Inquiry Committee is appointed, under sub-rule (5), the authorised officer shall simultaneously frame a charge and communicate it to the accused together with a statement of allegations explaining the charge and other relevant circumstances which are proposed to be taken into consideration and 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 directly before the Inquiry Officer or the Inquiry Committee, as the case may be.
(7) The authorised officer, immediately after communicating the charge to the accused under sub-rule (6), shall forward such record or copies thereof, and such other material as is necessary for the conduct of the inquiry toy the Inquiry Officer or the Inquiry Committee, as the case may be."
41. ' From the Scheme of the makers of these Rules, it is clear that two persons namely; Authority and authorised officer have to exercise the powers in respect of disciplinary action against an accused civil servant. Initially it is for the Authority to decide as to whether any disciplinary action against a civil servant is to be taken under the provisions of these Rules or not. If in the opinion of the Authority, the proceedings in respect of any complaint, are necessary against any civil servant, it shall appoint an authorised officer and direct him to proceed against such civil servant under the provisions of these Discipline Rules. After giving such directions, the Authority is out of the picture.
42. The authorised officer then shall emerge and play a prominent role under these Rules. The authorised officer, in his pivotal position under Discipline Rules, shall decide as to whether or not inquiry against the civil servant should be conducted or not. In case his decision is in favour of conducting inquiry, he shall appoint an Inquiry Officer or Inquiry Committee for such purpose. He shall also frame charge against the civil servant and communicate the same to him requiring him to put up his written defence even before. The Inquiry Officer or Inquiry Committee and intimate to such Inquiry Committee or Inquiry Officer, as the case may be, whether such accused civil servant would like to avail personal hearing or not. He thereafter on the basis of inquiry report shall be legally competent to determine as to whether the charge against the civil servant has been established or not. He shall be also competent to decide the nature of penalty to be imposed to such civil servant. The authorised officer, under the provisions of these Discipline Rules, is also vested with power to award minor penalty. However, if in his wisdom, the accused civil servant deserves major penalty, in that case he under the Discipline Rules is required to send the whole record of the proceedings alongwith his recommendations for the penalty to be imposed, to the Authority. The Authority, in such circumstances, shall again emerge on the scene and after providing right of audience to the accused civil servant shall be competent to pass order as deemed proper.
43. ' In the present case, Mr. Muhammad Yunus Awan was appointed an authorised officer by the Government on the direction of the Board of Directors of AKLASC. Prior to that, this person had conducted fact finding inquiry alongwith Mr. Amanullah Khan, on the direction of the Government.
44. At page 7 of this order, we have reproduced the relevant portion from the report of Inquiry Committee in support of this fact. He in our opinion, on account of this reason, was debarred to act as an authorised officer. The objective behind making the provisions for the Authority, authorised officer and Inquiry Officer or Inquiry Committee, as the case may be, and of assigning each one of them distinct functions in the Discipline Rules appears to be to ensure the scrutiny of the charges against any civil servant at different level by different persons independently of each other. This objective in the present case, in our view, stood defeated when Mr. Muhammad Yunus Awan who had conducted inquiry on the direction of the Government, subsequently acted as authorised officer in the present case. Moreover, his son was one of those employees of the AKLASC against whom proceedings under the Discipline Rules were decided to be taken. It was the demand of the Rules of propriety that he should have not been given the pivotal of an authorised officer as human being his personal interest was involved. Our view finds support from sub-rule (3) of Rule 2 of the Discipline Rules which being relevant is reproduced for the sake of reference:- "(3) Save in case where Government is to act as the authority or the 'authorised officer', notwithstanding, anything to the contrary contained in rule 2, where 'the Authority or the authorised officer' would personally be interested in the result of proceedings under these rules, the Authority' or the 'authorised officer' shall not proceed with the case and shall--
(i) in the case of 'Authorised Officer' report the matter to 'the authority' which shall appoint and authorise another officer of the corresponding rank or status to act as 'Authorised Officer' and
(ii) in the case of 'authority report the matter to the Appellate Authority to which the orders passed by 'the authority' are ordinarily appealable and such Appellate Authority shall appoint and authorise another officer of the corresponding rank and status to act as the authority' "
(iii) His appointment, in view of above reasoning, is found bad in law even under the Discipline Rules. In the same way, Mr. Rashid Ahmed Katal had conducted some inquiry in past in the same matter which he has admitted in his inquiry report in the following words:-- {{URDU TEXT }} ' Mr. Rashid Ahmed Katal, later on, based his findings on the previous inquiry reports which were prepared by him and Mr. Muhammad Yunus Awan in past. The provisions for Authority, Authorised Officer and Inquiry Officer or Inquiry Committee provided in the Discipline Rules, as earlier mentioned, show that the distinct functions have been assigned to them and all of them at their level have to apply their independent mind against the accused civil servant before depriving him in case of major penalty from the right of his service.
45. ' In this case, as said earlier, the head of the Inquiry Committee, Mr. Rashid Ahmed Katal and authorised officer, Mr. Muhammad Yunus Awan had conducted inquiry in past. The scheme of Discipline Rules, therefore, stood defeated when both of them were assigned very important role to act as an authorised officer and head -of Inquiry Committee. For conducting inquiry under the Discipline Rules, the lengthy procedure has been provided in Rule 7. Under this provision of law, the Inquiry Officer or the Inquiry Committee, as the case may be, is required to hear the case from day to day in presence of the accused civil servant.
46. ' In the present case, the inquiry was conducted against the spirit of Discipline Rules. The Inquiry Committee received three applications by post and relied upon these applications in the fresh inquiry report without recording statements of those persons who allegedly had sent these applications to the Committee. It was mandatory for the Inquiry Committee to record their statements in support of their applications in presence of the petitioner with an opportunity to cross-examine them before relying on these applications. Thus the inquiry report is the outcome of inquiry proceedings which were conducted in contravention of the Discipline Rules. Consequently the impugned order based on such inquiry report and on the recommendation of a person who was not legally competent to act as an authorised officer, is devoid of any legal force.
47. ' In this case, even authority failed to follow the provisions of the Discipline Rules. Because under the provision of Discipline Rules, the authorised officer, is legally competent to impose minor penalty but if in his judgment, the accused civil servant deserves major penalty, then in that case he has to forward the case of such accused civil servant to the authority alongwith his recommendation. The authority, under the Discipline Rule 8, on receipt of the record from the authorised officer, after providing an opportunity of being heard to the accused civil servant, shall pass such order as is deemed fit. In the present case, this Rule was violated. There was, therefore, violation of the principle of natural justice which in our view has rendered the whole proceedings coram non judice.
48. ' The Supreme Court of Pakistan in a case titled "Chief Administrator, Auqaf v. Muhammad Ramzan and others", (PLD 1991 SC 102), has held that any favourable comment in the absence of hearing of the parties may violate the basic principle of audi alteram partam. In 'Pakistan and others v.
49. Public-at-large and others' (PLD 1987 SC 304), the apex Court has laid down that the principle of audi alteram partem has its root in Islamic Jurisprudence. In the present case, a duty was cast under Rule 8 on the Authority to record final order whatever was deemed fit by the authority after providing right of hearing to the petitioner.
50. ' In the light of above reasoning, while allowing this writ petition, the impugned order passed against the petitioner on December 28, 1992 is declared to be unlawful and of no legal effect and consequently the same is set aside. The petitioner is reinstated and held entitled to all service benefits. As the appointment of Mr. Muhammad Yunus Awan as an authorised officer, was approved by the Board of Directors AKLASC in their meeting held on 23-1-1992 vide Notification No,2577-91 dated 3-2-1992, the loss caused to the AKLASC may be recovered from the Directors as they failed to bring in the notice of the Government, the disability of Muhammad Yunus Awan to act as an Authorised Officer. This order shall not be a bar for the competent Authority to initiate fresh proceedings against the petitioner in accordance with the Discipline Rules.