' Brief facts of the case as mentioned in the impugned order are that Mr. Muhammad Nawaz Khan ex-Deputy Director O&M-I WASA was proceeded against under E & D Rules, 1975. He was issued show-cause notice under Rule 6(3) on the following allegations:-
(i) While posted as SDO MDA Division No,IV, he committed serious irregularities involving financial loss to MDA. In this regard an enquiry was initiated against him and finally, the Authority imposed upon him a major penalty under Rule 4(b) wherein his pay was reduced to initial stage of BPS-17 vide Order No,791/Admn./MDA, dated 11-7-1988. In spite of imposing upon him a major penalty, he did not mend his ways and continuously repeating his previous practice and committing violation of rules/procedure as envisaged in the allegations noted below.
(ii) The Director-General, MDA visited Multan city roads on 5-1-1995 and found that the work of Akbar Road and Masoom Shah Road was allotted- in the year 1991 and that of Vehari Road and Bahawalpur, Road was allotted in the year 1994 but none of the works - was completed. The Director-General, MDA issued instructions to rescind the works and complete it at the risk and cost of defaulter contractors. Moreover, the matter was further reviewed and found that no action was taken by him. He was warned to take action against the contractors but in spite of issuance of warning, he did not care to carry out the instructions of Director-General.
(iii) He was assigned to arrange manhole covers under High Court orders and an amount of Rs,6,62,500 was sanctioned for this purpose. He invited tenders without adopting the prescribed procedure under the B&R Code and, therefore, committed serious financial irregularities resulting into financial loss to WASA. His explanation was also called on the report of Managing Director WASA regarding said issue vide Letter No,3802/Admn/MDA, dated 3-7-1996. After repeated reminders, he replied on 27-8-1996. His reply was found unsatisfactory.
(iv) He performed the duty of Deputy Director O&M-I, WASA and showed in efficiency and deriliction of duty. His this conduct was observed by the Director-General on 17-6-1996 when he visited the sites of Muslim Colony and its adjacent Abadies. He was served a show-cause notice regarding said issue vide No,2043/Admn/WASA, dated 20-6-1996. He did not reply the show-cause notice after a lapse of about one year which shows that he has no cogent reply to offer. Hence, it is presumed that the charges as set-forth in the notice stands proved.
(v) On 6-3-1997, the Managing Director WASA issued directive under Rule 5 of the E&D Rules. 1975 to proceed against him on the charge of in efficiency by appointing Director Admn. And Finance WASA to act as Authorised Officer. The Authorised Officer decided that it is not necessary to have an enquiry conducted in proof thereof and he served him a show-cause notice under sub-rule (3) of Rule 6 of the E & D Rules, 1975 vide No,507/Admn/WASA, dated 6-3-1997. He was bound to submit his reply within 14 days but it is learnt that he has not submitted the defence reply of notice yet. As per contents of the notice, the allegations levelled against him stand proved.
(vi) A meeting was held on 26-2-1997 to resolve the sewer problems of New Multan and he also attended the meeting. It was decided that he will submit an action plan with time schedule containing measures to be adopted in consultation with the Association, but he did not bring the plan and also showed similar indifferent attitude in Writ Petition filed by Fazal Din which resulted in contempt proceeding against the Director-General, MDA because of delay in replying the writ petition and show-cause notice and no action towards sewer problems of Bilal Nagar. His explanation in this regard was also called vide No,673/Admn/MDA, dated 14-3-1997 but he did not reply which shows that the allegations as a mentioned in explanation notice are fact.
(vii) He is residing in House No,13 of MDA Colony. He was asked to report whether he is paying Sui Gas bill of his residence or otherwise. Whereas, his consumer bill number has been paid by Mr. Mumtaz Ahmad Qureshi, Ex-Director Finance and Admn. MDA. In spite of issuance of four reminders vide No,6114/Admn/MDA, dated 21-10-1996, No,9017/Admn/MDA, dated 4-12-1996, No,88/Admn/MDA, dated 4-1-1997, and No,Admn-II/4230/MDA, dated 9-4-1997 and passing about one year, he has not bothered to submit his reply. It means that he has not paid utility bills of Sui Gas regarding the residence No,13 (previous No,3) which was occupied by Mr. Mumtaz Ahmad Qureshi, Ex-Director Finance and Admn. MDA.
(viii)The Managing Director WASA directed him to report him about the action taken against sewermen and also asked him to forward the recommendations against said officials to take action under E&D Rules, 1975 vide his No,42/Admn/WASA, dated 24-2-1997, but he did not bother to submit his report to MD, WASA. His this action shows that he does not care the instruction of senior officer which tentamounts to breach of order and discipline.
2. The Authorised Officer has concluded that all the allegations except one (vii) above stand proved against him. He has, therefore, recommended that major penalty may be awarded to the accused officer after giving him a chance of personal hearing.
3. The accused officer was afforded an opportunity of personal hearing on 8-7-1997. He relied on his defence statement submitted before the Authorised Officer. I have gone through the available record on file and after hearing the accused officer, he is awarded major penalty of compulsory retirement from service with immediate effect.
4. The petitioner has been compulsorily retired from service vide impugned order dated 9-8-1997 passed by respondent N6.2. The petitioner seeks declaration that the impugned order is illegal and without lawful authority.
5. The learned counsel for the petitioner submits that all the allegations against the petitioner were such which could not be summarily decided and on which holding of proper inquiry was necessary to come to the just conclusion.
6. On the other hand, the learned counsel for the respondents could not controvert the submissions and took that an alternate efficacious remedy is available by way of appeal before the Chairman, MDA under Rules 13 and 14 of the Punjab Civil Servants (E&D) Rules, 1975.
7. I have given due consideration to the valuable arguments on both sides and perused the record.
8. Admittedly, the petitioner in this case had denied all the allegations and put the responsibility on the employer. Thus, it was not a case of recourse to a shortest procedure of show-cause notice as controversial questions of facts were involved which could not be resolved without recording evidence and opportunity of cross-examination is to be given. In the case of Alamgir v. Divisional Forest Officer, Multan (1993 SCMR 603) the Hon'ble Supreme Court of Pakistan has observed that:-- "In the Deputy Inspector-General of Police, Lahore and others v. Anis-ur-Rehman Khan PLD 1985 SC 134 it has been pointed out that in what circumstances recourse to the shorter procedure of show cause is justified. For resolving controverted questions of fact where evidence has to be recorded and opportunity of cross-examination has to be given, the proper course is always to hold a full- fledged inquiry. Otherwise, the findings recorded, as in this case, will be based more on conjectures than on evidence/material available on record properly produced and accepted."
' Similarly in the case of The Secretary, Government of the Punjab, through Secretary Health Department, Lahore and others v. Riaz-ul-Haq (1997 SCMR 1552 the Hon'ble Supreme Court of Pakistan has observed that:- "It may be observed that in the present case, inter alia, the respondent was charged with defiance of the orders of superiors, being rude to his colleagues, having concealed the factum of having a job of a Stenographer with the Board of Excellence of Education etc., which the respondent had denied and, therefore, there was a factual controversy which could not have been resolved without holding regular departmental disciplinary proceedings. In this regard reference may be made to the following cases:-
(i) Deputy Inspector-General of Police Lahore and others v. Anis-urRehman Khan PLD 1985 SC 134;
(ii) Alamgir v. Divisional Forest Officer, Multan and others 1993 SCMR 603;
(iii) Jan Muhammad v. The General Manager, Karachi Telecommunication Region, Karachi and another (1993 SCMR 1440);
(iv) Nawab Khan and another v. Government of Pakistan through Secretary Ministry of Defence, Rawalpindi and others (PLD 1994 SC 222); and
(v) Ghulam Muhammad Khan v. Prime Minister of Pakistan and others (1996 PLC (C.S.) 868); ' In all the above reports, it has been held that if an accused civil servant/employee is charged with misconduct of the nature which cannot be proved without holding of a regular enquiry, the removal or dismissal from service of a civil servant on the basis of a summary enquiry is not sustainable in law. It will suffice to reproduce para. 5 from the last report, which reads as under:-- "5. It has been consistently held by this Court that there is a marked distinction between Rule 5 and Rule 6 of the Rules, inasmuch as under the former Rule, a regular inquiry can be dispensed with, whereas the latter Rule envisages conducting of regular inquiry which will necessitate the examination of witnesses in support of the charges brought against the accused civil servant, his right to cross-examine such witnesses and his right to produce evidence in rebuttal. The question, as to whether the charge of a particular misconduct needs holding of a regular inquiry or not, will depend on the nature of the alleged misconduct. If the nature of the alleged misconduct is such on which a finding of fact cannot be recorded without examining the witnesses in support of the charge or charges, the regular inquiry could not be dispensed with. Reference may be made in this behalf to the case of Nawab Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others (PLD 1994 SC 222)."
9: From the above discussion, it is evident that the disposal of the matter by the respondent has' been against the rules and the guide-line given by the Hon'ble Supreme Court of Pakistan and as such the same was illegal and without lawful authority and is hereby set aside. The writ petition is allowed and the authority is directed to initiate the proceedings against the petitioner from the stage of appointing an Inquiry Officer who shall proceed further in accordance with law