ABDUL GHANI SHAIKH, CHAIRMAN -- Through the instant appeal u/S. 4 of Sindh Service Tribunals Act, 1973 the appellant has challenged original order dated 12.2.1998 whereby he was awarded major penalty of removal from service and appellate order dated 31.10.1998 whereby he was informed about rejection of this departmental appeal.
2. The facts in nutshell touching the controversy in this appeal are that appellant while posted as Medical Officer, Rural Health Centre, Unarpur District Dadu was served with show-cause notice dated 14.12.1996 issued by respondent No. 2 embodying the following charge:- " The Director General, Health Services Sindh, Hyderabad has reported that you have issued Medico-legal certificate in respect of injured Karim Dino s/o Dhani Bux resident of village Jan Muhammad Mahesar, Unarpur, District Dadu which according to the unanimous opinion of the Special Medical Board constituted under the Chairmanship of the Medical Superintendent/Civil Surgeon, Services Hospital, Hyderabad is incorrect (copy enclosed). This act tantamount to misconduct on your Part."
According to appellant he had replied the said show-cause notice on 30.12.1996 and denied the allegation. He was then served with final show-cause notice dated 11.3.1997, wherein it is mentioned that appellant did not send the reply of the show-cause notice within stipulated period. This final show-cause notice was also replied by the appellant on 14.6.1997 and once again he denied the allegation. After affording him personal hearing, the appellant vide order dated 12.2.1998 was removed from service by respondent No. 2. Being dis-satisfied the appellant preferred departmental appeal before the Chief Secretary, Sindh. The appellant was then informed vide letter dated 31.10.1998 by the Section Officer, Govt. of Sindh, Health Department, that this appeal has been considered and rejected by the competent authority. Feeling aggrieved, the appellant has filed the instant appeal before this Tribunal on 17.12.1998.
3. Respondent No. 2 filed written statement denying the averments raised in the memo. of appeal and supported the impugned orders.
4. Mr. Abdul Latif Ansari, learned counsel for the appellant has assailed the propriety, legality and correctness of the impugned orders on the ground that appellant was removed from service on the basis of show-cause notice, final show-cause notice and its replies submitted by the appellant and (sic) and the principle of natural justice and orders/judgments of the superior Courts were also ignored. He next contended that respondent No. 3 had exercised three powers simultaneously i.e. he acted as an Authorized Officer, Competent Authority and so also as an Appellate .Authority and that on this ground alone the impugned orders are liable to be quashed. He went on the argue that the respondent No. 2 being "Authorized Officer" under Rule 5(4)(a) of the Sindh Civil Servants (Efficiency & Discipline) Rules, 1973 is competent only to impose minor penalty as mentioned in Rule 4(a) but is not competent to impose major penalty as mentioned in Rule 4(b) of the above-said Rules of 1973, thus the original impugned order being without jurisdiction, ma/a fide and nullity in the eyes of law is liable to be set aside.
5. Mr. Muhammad Qasim Mirjat, learned counsel for the official respondents while controverting the submissions raised by Mr. Ansari, has argued that whether the charge of a particular misconduct needs holding of a regular enquiry or not, will depend on the nature of the alleged misconduct and that Rule 5(2) of E&D Rules, 1973 empowers the Authorized Officer to decide whether in the light of facts of the case or the interest of justice an enquiry should be conducted through enquiry officer and that under Rule 5(3) of said Rules the Authorized Officer decided that it is not necessary to have an enquiry conducted through enquiry officer, a regular enquiry can be dispensed with.
Further, he contended that the allegation levelled against the appellant embodied in the show- cause notice was not of such nature which require holding of a regular inquiry through enquiry officer. As regards awarding major penalty by the Authorized Officer, the learned AAG has submitted that as a matter of fact the authorized officer had forwarded the case to the competent authority as required under Rule 5(4)(b) of the E&D Rules, 1973 alongwith recommendations regarding the penalty to be imposed,- but due to oversight bona fide. mistake this facts was not mentioned in the impugned order dated 12.2.1998 and chat . for rectification of said mistake, a corrigendum dated 28.9.1998 has already been issued which is annexed with the written statement, thus according to learned AAG no illegality was committed and that the impugned order being legal and lawful calls for no interference.
6. We have anxious:y considered the arguments advanced before us and with the able assistance of learned counsel we have also minutely gone through the material documents placed on the record:
7. Since the instant appeal can conveniently be decided on the legal ground alone, we are refraining ourselves from commenting on the merits of the case as to guilt of otherwise of the appellant, which may prejudice the case of either party.
8. The contention of learned counsel for the appellant that respondent No. 2 had simultaneously exercised powers of an 'Authorized Officer' a, 'Competent Authority' so also that of an 'Appellate Authority' does not appear to be entirely correct. Respondent No: 2 has in fact exercised his powers as 'Authorized Officer' and a 'Competent Authority' but he has not acted as an 'Appellate Authority'.
The respondent. No. 2 while acting as Authorized Officer had issued show-cause notice so also final show-cause notice to the appellant and on receipt of reply he while exercising the powers of 'Competent Authority' removed the appellant from service vide order dated 12.2.1998. Learned Asstt.
A.G. invited our attention to a corrigendum dated 28.9.1998 and stated that due to oversight bona fide mistake the fact that case was forwarded to the Competent Authority alongwith recommendations of the authorized officer was not mentioned in the impugned order dated 12.2.1998. This contention appears to be devoid of force, as no material in this regard has been produced before this Tribunal. Respondent No. 2 alongwith written statement filed a photostat copy of last page of a note sheet iAnnexure (V) Which Shows that a note was written by the Additional Secretary wherein he suggested to impose , major penalty upon the appellant. The Secretary while accepting the suggestion passed marginal orders 'Removal from service may be imposed' and he then marked the file to same Addl. Secretary who in turn marked the same to Deputy Secretary. It is thus -clear that the case was not forwarded to the competent authority i.e. Chief Secretary as required under Rule 5(4)(b) of Rules, 1973. For the sake of arguments even if it be presumed that the case was forwarded to the competent authority alongwith recommendation of the authorized officer then also this fact could have been mentioned in the impugned order dated 12.2.1998. The appellant after receipt of original impugned order'passed by respondent No. 2, preferred e departmental appeal to the Chief Secretary who in fact is the competent authority in the instant case. Had the fact that the competent authority was pleased to impose major penalty upon the appellant been mentioned in the impugned order, the appellant in such a situation could have preferred departmental' appeal to the Chief Minister being an 'Appellate Authority'. Even if the approval of the competent authority was contained (as. stated by learned AAG) prior to issuance ,of the impugned order dated 12.2.1998 then also it is a matter for consideration as to why and under -what circumstances the competent authority i.e. Chief Secretary (who had earlier accorded approval for imposing major penalty of removal) exercised the powers of an appellate authority by rejecting the departmental appeal of the appellant as is evident from the letter dated 24.10.1998 of S&GAD (Annexure VIII) attached with written statement filed by respondent No. 2 addressed to the Secretary, Health Deptt on the basis of which the later informed 'the appellant vide letter dated 31.10.1998 about rejection of his departmental appeal. If the Chief Secretary in the capacity of competent authority had accorded approval for imposing major penalty of removal upon the appellant then in-that eventuality he could have forwarded the departmental appeal of the appellant to the appellate authority viz. Chief Minister which post was in existence when the impugned :orders were passed)- instead of considering and rejecting the same. From the perusal oaf the documents available on record it is crystal clear that either the Secretary Health or the Chief Secretary exercised two powers i.e. one vested in them and the other not vested in them. The Secretary, Health had acted as an 'Authorized Officer" who by dispensing with a regular enquiry firstly issued show-cause notice and then final show-cause notice to the appellant for alleged misconduct, this power is very much vested in him. He, however, by awarding major penalty of removal to the appellant had acted as 'Competent Authority' which power is admittedly not vested in him. However, if it is said in view of the corrigendum dated 28.9.1998 that the impugned order dated 12.2.1998 was issued after obtaining approval of the competent authority viz. Chief Secretary, then it is clear that the Chief Secretary had exercised two powers i.e. one by according approval of imposing major penalty of removal, which is vested in him and the other by rejecting the departmental appeal of the appellant while acting as 'Appellate Authority' which power so far the instant case is concerned is not vested in him.
9. In the light of what has been stated above, it is evident that the disposal of the matter by respondents has been against the rules, the impugned orders being illegal and without lawful authority are hereby set aside. The appeal is accepted and we direct that the appellant be reinstated in service. The intervening period be treated as earned leave of the kind due to the appellant. The respondents are, however, at liberty to initiate the de novo proceedings and proceed further in accordance with law. There shall be no orders as to costs.
Given under our hands and the Seal of this Tribunal this 10th day of February, 2002.