' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment of the High Court, dated 12-2-2000. Whereby separate writ petitions filed by Muhammad Bashir Khan, S.D.O., and Mushtaq Ahmed Abbasi, Overseer, employees of Public Works Department, were accepted by a consolidated judgment and the order of penalties of dismissal from service and the recovery of certain amount were set aside
2. The brief facts of the case are that Raja Muhammad Bashir Khan, S.D.O., and Mushtaq Ahmed Abbasi, Overseer, the employees of the Public Works Department, were entrusted the work of construction and metalling of Ghaziabad-Minhasa Road which was damaged by flood in the year 1992. According to the departmental directions they had to complete the said works within the amount sanctioned by the department. But in violation of the directions they tendered out the said works to various contractors and thereafter, paid them amount which was in excess of the sanctioned amount and thus, caused financial loss to the Government treasury to the tune of Rs,7,73,059. Consequently, the concerned authorities decided to proceed against the aforesaid accused-respondents under the Efficiency and Discipline Rules. Firstly, Mr. Muhammad Ilyas Abbasi, Executive Engineer Buildings Division, was appointed as Inquiry Officer who called upon the respondents to submit their reply to the charge-sheets within 14 days. According to the respondents they submitted their written reply to the Inquiry Officer. Thereafter, in place of said Inquiry Officer first Mubashar-ul-Haq, Executive Engineer, and afterwards Muhammad Hussain Pervez were appointed as Inquiry Officer. The aforesaid two Inquiry Officers also served the identical charge-sheets upon the respondents. However, according to the respondents, in response to the subsequent two charge-sheets, they replied that they had already filed the reply to the charge-sheets which were served upon by the first Inquiry Officer. Lastly, Muhammad Hussain Pervez, Inquiry Officer, submitted a report to the authority; before submitting reports, the authorised officer issued the show-cause notices to the aforesaid employees as to why major penalties should not be imposed upon them. The respondents also submitted their reply to the aforesaid notices. Thereafter, the Government passed the impugned order, dated 22-4-1999 whereby they were removed from service and also ordered that an amount of Rs,7,73,059 was to be realiased from them in equal proportion.
3. The respondents challenged the aforesaid order by filing writ petitions in the High Court. The learned Judge in the High Court accepted the writ petitions on the ground that despite the fact that three Inquiry Officers were apponted one after another to conduct inquiry against the accused-respondents but all the same their reply to the show-cause notices which were issued by Mr. Muhammad Ilyas Abbasi first Inquiry Officer, was sufficient and the subsequent Inquiry Officers were not legally justified to issue fresh show-cause notices; they should have considered the reply which the accused-respondents had submitted in response to the notices which were issued to them by Mr. Muhammad Ilyas Abbasi, Executive Engineer. The learned Judge in the High Court observed that the inquiry was a continuous process and the appointment of subsequent Inquiry Officers did not necessitate to proceed from the very start, i,e, by issuing show-cause notice to the respondents. The learned Judge also expressed the view that the Inquiry Officer should have submitted his report within 60 days of the issuance of first show-cause notices but this was not done and the Inquiry Officer submitted his report after the expiry of the aforesaid period. The High Court set aside the impugned orders on the said grounds and reinstated the accused- respondents with the observations that the concerned authorities may proceed against them afresh according to the rules, if they so choose.
4. Raja Shiraz Kayani, the learned Advocate-General, has argued that the High Court was not legally justified to observe that Inquiry Officer Muhammad Hussain Pervez was not legally competent to issue fresh show-cause notice. He has argued that in fact the accused-respondents did not submit their reply to the show-cause notices issued by the two subsequent Inquiry Officers rather they also did not care to appear before them. He has argued that if a civil servant who is proceeded against for misconduct and fails to appear before the Inquiry Officer, despite notice to him, he is to be proceeded ex parte; subsequently, such civil servant cannot turn round and that he was not afforded an opportunity of being heard. He has argued that the accused-respondents also did not own the so-called reply to the notice given by them in response to the show-cause notices issued by Mr. Muhammad Ilyas Abbasi, Executive Engineer. Thus. The learned counsel has argued that the impugned judgment of the High Court is not sustainable.
5. Ch. Muhammad Ibrahim Zia, the learned counsel for contesting respondents has controverted the arguments advanced on behalf of the appellants. He has contended that the inquiry report has been given without recording the evidence and no reasons have been given in support of charges which were levelled against the respondents. The learned counsel has argued that after receiving the reply in the charge-sheets from the accused-respondents stating that they had already submitted the explanation to the charge-sheets to the Inquiry Officer Muhammad Ilyas Abbasi, Executive Engineer, the proper course for the Inquiry Officer subsequently appointed was to trace out the original files of inquiries and find out the said explanations which they had already submitted before Muhammad Ilyas Abbasi. If the files or for that matter the explanations to charge-sheets were not traceable, he should have intimated them that as their replies, previously submitted by them, were not traceable, they should submit their fresh replies to the charge-sheets served upon them. If they would have not complied such notices, he could have proceeded ex parte against them. The learned counsel has argued that as inquiry proceedings against a civil servant under the provisions of Azad Jammu and Kashmir Civil Servants (Efficiency & Discipline)
Rules, 1977 (hereinafter shall be referred to as the Rules of 1977) are akin to criminal proceedings, the procedure prescribed should be strictly followed. The learned counsel has' drawn our attention to the inquiry report wherein the Inquiry Officer has stated that as the accused-respondents neither filed their replies to the charge-sheets nor they appeared before him, the charges against them would be deemed to have been proved. The learned counsel has argued that even if it is assumed for the sake of arguments that the accused-respondents were rightly proceeded ex parte, it was incumbent upon the Inquiry Officer to bring on record the incriminating material against the respondents before submitting his report. He has argued that the ex parte proceedings does not mean that penalty can be imposed on the accused because he did not participate in the proceedings and was proceeded ex parte. The learned counsel has referred to a case reported as Muhammad Shafique Mughal V. Accountant-General and another (1996 SCR 127).
6. We have given due consideration to the arguments raised at Bar. It may be pointed out that in the Rules of 1977 a comprehensive procedure has been prescribed which is to be strictly followed by the Inquiry Officer, Authorised Officer and the Authority while proceedings against a civil servant.
It may be observed that generally the inquiry is to be completed within 60 days, or at the most within 90 days with the permission of the Authority. In the present cases we are constrained to point out that the charge-sheets were issued to the respondents on 26-3-1994; thereafter, three Inquiry Officers were appointed one after another and the so-called inquiry report was submitted on 17-9-1996 and finally the authority took the action against the accused persons on 22-4-1999, i,e, about five years after the serving of the charge-sheets. Such a delay in finalising inquiry against a civil servant has not been envisaged in the said Rules according to which the same is to be completed at the most within 90 days. The so-called inquiry report which was submitted after the expiry of about three years from the initiation of the proceedings against the accused respondents was without holding any inquiry; it merely says that as the accused-respondents did not appear before the Inquiry Officer, the charges against them stand proved. Needless to say, under sub-rule
(2) of rule 7 of the Rules of 1977 even if ex parte proceedings against accused-respondents are held justified the Inquiry Officer was bound to record the evidence against the accused- respondents. This is a sad commentary on the working of the concerned authorities that even after such a long time, the inquiry report against the respondents was submitted without holding an inquiry as required by the Rules.
7. It may be observed that we are in full agreement with the view taken by the High Court that inquiry in the instant case was a continuous process and it was incumbent upon the concerned Inquiry Officers to trace out the original files of the inquiries and find out the replies which were allegedly submitted by the accused-respondents. If for one reason or the other, the relevant files were not available the Inquiry Officer should have intimated the respondents that as their earlier replies were not traceable they should submit fresh replies to the charge-sheets and in case they would have failed to do the needful, they could be proceeded ex parte. Even if we assume for the sake of arguments that aforesaid conduct of the accused-respondents was sufficient to proceed ex parte against them, it was incumbent upon the Inquiry Officer to conduct the inquiry according to the Rules of 1977 which require to probe into the allegation and bring incriminating material, if any, against an accused person on the record. We may also reproduce here some of the guidelines laid down by this Court in a case reported as Muhammad Shafique Mughal v.
Accountant-General and another (1996 SCR 127). The relevant extract from the judgment is reproduced as under:-- "5. It may be noticed that when regular inquiry is being held against a civil servant sub-rule (3) provides that the Inquiry Officer shall inquire into the charge and may examine such oral or documentary evidence as may be considered necessary. The sub-rule also provides that the accused shall be entitled to cross-examine the witnesses against him. It follows that in sub-rule (3) there are four basic requirements which have to be fulfilled. Firstly that the Inquiry Officer has to inquire into the charge which means that he is to hold an inquiry. The second requirement is that oral or documentary evidence has to be examined in support of the charge. The third requirement is that the accused has to be given an opportunity to produce necessary evidence in his defence. It is significant that while referring to civil servant who is being proceeded against under the Government Servants (Efficiency and Discipline) Rules the word accused has been used which indicates that the proceedings conducted by the Inquiry Officer are akin to a criminal trial."
8. It is evident from what has been stated above that in fact no inquiry has been held in the instant case against the accused-respondents. However, we may point out that if the concerned authorities intend to hold a fresh inquiry against the accused-respondents, as has been directed by the High Court, and the original replies to the charge-sheets served upon them are not traceable, they may issue fresh charge-sheets to the accused respondents calling upon to submit their explanation as envisaged under Rules. It may also be pointed out here that Mushtaq Ahmad Abbasi, accused-respondent, has also taken a ground in his writ petition that the 'Authority' did not give any approval to the 'Authorised Officer" to initiate the proceedings of misconduct. Obviously, if Authorised Officer proceeded to initiate proceedings against any of the accused without the approval of the Authority as envisaged under rule 5(1) of the rules, the proceedings initiated would be vitiated as being unlawful. Thus, it is for the concerned Authorised Officer to consider all such matters if he chooses to hold fresh inquiry against the accused-respondents so that any other lacuna in the procedure vitiating the inquiry may be avoided.
' With these observations, the appeal filed by the Government is hereby dismissed.