' JUSTICE (RTD.) ABDUL GHANI SHAIKH, CHAIRMAN.--- Appellant Ajmal Tufail while posted as Excise and Taxation Inspector, District Central, Karachi was served with a show-cause notice, dated 21-7- 1999 Issued by the Secretary Government of Sindh, Excise and Taxation Department, being an Authorised Officer, wherein it is alleged that, some accused were arrested in between 19/20 May, 1999 but the F.I.R. No,13 of 1999 was lodged on 23-5-1999, co-accused was also arrested but was let-off without any reason, accused were kept in the office instead of lock-up, identification form of accused was prepared on 21-5-1999 but was signed on 20-5-1999 i,e, 3 days prior to lodging of F.I.R., quantity of heroin (powder) seized was shown as one K.G. Which after belended with Chemical was declared as 5 Kgs., Rs,2 lacs recovered on the pointing of accused were not shown in case papers and that accused were escaped in between 27/28-5-1999 but in roznamcha date was mentioned as 29-5-1999. The appellant in his reply dated 11-8-1999 vehemently denied the allegations and professed his innocence. He was then served with final show-cause notice dated 23-2-2000, which too was replied by the appellant. Finally, vide impugned order, dated 28-9-2000 the appellant was awarded major penalty of dismissal from service by the Secretary, Excise and Taxation Department. Feeling aggrieved, appellant preferred departmental appeal to the Chief Secretary Sindh, getting no response and after passage of 90 days, the appellant was obliged to file instant appeal before this Tribunal on 22-2-2001.
2. Respondent No,2 filed written statement and supported the impugned order, while respondent No,1 adopted the written statement filed by respondent No,2.
3. Mr. Bukhari, learned counsel for the appellant has assailed the impugned order on following legal grounds.
(1) Show-cause notice issued against the appellant was not in accordance with rule 5(3)(a) of the Sindh Civil Servants (Efficiency and Discipline) Rues, 1973.
(2) The charges against the appellant being of very serious nature, which he vehemently denied, the respondent No,2 could not have dispensed with the regular enquiry under rule 5(3) of the Rules.
(3) Respondent No,2 had acted in dual capacity i,e, as an 'Authorised Officer' so also as 'Competent Authority' and thus violated the mandatory provision of rule 5(4)(b) of the Rules.
' In support of his above contentions, he relied upon, (1) 1996 SCMR 630 (2) NLR 1985 TD 396, and (3)
4. Mr. Mir, learned Assistant Advocate-General while controverting the above submissions has submitted that in the first so also in the final show-cause notice, the penalty proposed to be imposed on the appellant has specifically been mentioned, thus there is no violation of any rule. He next contended that under rule 5(3) of the Rules, the Authorized Officer is very much competent to dispense with the regular enquiry. Further, he submitted that respondent No,2 is an 'Authority' in respect of the Excise and Taxation Inspector and was fully empowered to award major penalty of dismissal from service to the appellant.
5. We have considered the above submissions, perused the case papers and have gone through the case-law referred to by the learned counsel for the appellant.
6. We first deal with ground No,1 and have seen the show-cause notice issued to the appellant and find that in para. 2 it was laid down as under:-- "I, therefore, by this Notice inform you that on the above ground it is proposed to impose upon you the Major penalty of removal from service as described in rule 4 of the said Rules. You are accordingly called upon to show cause why the proposed action should not be taken against you."
' From the simple look of the show-cause notice it appears that appellant was intimated that he was liable to the penalty of removal but in fact the appellant was awarded major penalty of dismissal from service instead of removal. Though the removal from service and dismissal from service are major penalties as described in rule 4(b)(iii) and (iv) of said Rules, but in view of sub- rule (2) of rule 4 of the said Rules the penalty of dismissal from service is much harsher than the penalty of removal from service. Sub-rule (2) of rule 5 says, "removal from service does not, but dismissal from service does, disqualify from future employment. The penalty of dismissal from service is thus not in accordance with the penalty proposed to be inflicted upon the appellant in the show-cause notice as well as in the final show-cause notice.
7. So far ground No,2 argued by learned counsel for the appellant is concerned, it is by now a well- settled principle of law that the question as to whether a regular enquiry is to be held in a case of misconduct against an accused civil servant/employee or not will depend on the facts of each case. In the instant case, the appellant was charged with a very serious allegations of misconduct contained in the statement of allegations as highlighted hereinabove in para. 1, which the appellant vehemently denied in his reply to first show-cause notice as well to final show-cause notice. In this view of the matter, the respondent No,2 could not have resorted to rule 5(3) of the said Rules by dispensing with the regular enquiry, which was not warranted by 'law.
8. It will suffice to reproduce para. 5 of the judgment in the case of Ghulam Muhammad Khan v.
Prime Minister of Pakistan and others 1997 PLC (C.S.) 868.
"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 enquiry 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 enquiry 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 enquiry 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, Ministery of Defence, Rawalpindi and others PLD 1994 SC 222".
' Reference is also invited to the cases of (1) The Deputy Inspector-General of Police, Lahore v. Anis- ur Rehman Khan PLD 1985 SC 134 and (2) Alamgir v. D.F.C. Multan and others 1993 SCMR 603.
9. Now we deal with the last ground taken by the appellant in support of his appeal. There is no denial of the fact in the instant case, the first show-cause notice so also the final show-cause notice were issued by the respondent No,2 in the capacity of 'Authorised Officer'. The Authorized Officer, under rule 5(4)(a) of the said rule though is competent to impose minor penalty as mentioned in rule 4(a) of the said Rule but is not competent to impose major penalty as described in rule 4(b) of the Rules.
10. Rule 5(4)(a) and (b) of the said Rules, for the sake of convenience are reproduced as under;-- "5(4). On receipt of the report of the Inquiry Officer or Inquiry Committee, or where no such officer or Committee is appointed, on receipt of the explanation of the accused if any, the authorized officer shall determine whether the charge has been proved: and
(a) If it is proposed to impose a minor penalty shall pass the order accordingly;
(b) If it proposed to impose a major penalty he shall forward the case to the authority alongwith the charge and statement of allegations served on the accused, the explanation of the accused, the findings of the Inquiry Officer or Inquiry Committee if appointed and his own recommendations regarding the penalty to be imposed and the authority shall pass such orders as it may deem fit and proper."
11. From the simple reading/perusal of the above said rule, it is crystal clear that the imposition of major penalty can be ordered by the "Competent Authority" alone whereas minor penalty only can be imposed by the "Authorized Officer".
12. In the case, as stated earlier, the first and final show-cause notices were issued by the Secretary, Excise and Taxation Department in the capacity of "Authorized Officer', he was thus not legally competent to impose/award major penalty of dismissal from service. Under rule 5(4)(b) of the said Rules, it was obligatory upon the 'Authorized Officer' (respondent No,2) to forward the case papers to the Competent Authority alongwith his recommendations, which exercise was not undertaken in the instant case. The impugned order passed by respondent No,2 being nullity in the eyes of law, coram non judice and in excess of the powers conferred upon him, is thus not sustainable in law and by no stretch of imagination the same can be maintained.
13. For the aforesaid reasons, the impugned order dated 28-9-2000 passed by respondent No,2 being illegal and without lawfully authority is hereby set aside. The appeal is allowed and respondent No,2 is directed to initiate the proceedings against the appellant afresh after issuing a proper show-cause notice and appointing an Inquiry Officer who shall proceed further in accordance with law. Meanwhile, we direct that the appellant shall be reinstated in service. So far back benefits are concerned, the same shall follow the result of disciplinary proceedings.
' Announced in open Court.
' Given under our hands and the Seal of this Tribunal this 30th day of January, 2002. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.