' FAKHRUDDIN H. SHAIKH (CHAIRMAN).-The appellant, who was formerly posted as Political Agent, Chagai, a border district of the Province, was charge-sheeted for corruption, living beyond his means and for associating and mixing up with notorious smugglers. Mr. Patch Khan Khajjak, Member, Board of Revenue was appointed us Inquiry Officer. After a protracted inquiry, the Inquiry Officer submitted his report to the Government, who vide order dated 30th March, 1977 removed the appellant from service in exercise of powers conferred by rule 4(b)(ii) of the Baluchistan Civil Service (Efficiency and Discipline) Rules, 1974. The appellant filed a review petition against this order, but it was rejected by the Government. Hence this appeal.
2. The impugned order dated 30th March, 1977 may be reproduced here to appreciate properly the nature of the allegations and the findings of the Inquiry Officer. It is as under :- "Quetta, the 30th March, 1977. ORDER ' Whereas a Departmental inquiry was ordered against Mr. Mohammad Akbar Jaffar, former acting P. A., Chagai on the following charges :- (1)The accused accumulated huge amount of money by accepting illegal gratifications for issuing permits of second hand clothing, onions and potatoes etc. (2)that he had assumed a style of living beyond his means and purchased a house worth Rs, 5 lacs in the name of his mother in law which was disproportionate to his known source of income.
(3)that he had been associating and mixing up with notorious smugglers and helping them in their smuggling operations."
' And whereas Mr. Fetch Khan Khajjak, Member II, Board of Revenue, Baluchistan was appointed to hold the inquiry. The Inquiry Officer has completed and submitted his findings, to the effect that Mr. Mohammad Akbar Jafar has been issuing permits with mala fide intention, has assumed a style of living beyond his means and purchased a Bungalo H worth Rs, 5 lacs in the name of his mother-in- law, which was disproportionate to his known source of income, and had issued permits for larger quantities than required in Chagai District, which obviously was to help the smugglers in their nefarious activities.
' And therefore in exercise of the powers conferred under rule 4(b),III) of the Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1974, the Government of Baluchistan is pleased to order removal from service of Mr. Mohammad Akbar Jafar with immediate effect.
' By Order of the Governor, Baluchistan Nusrum Minallah Chief Secretary."
3. The appellant has attacked this order on the ground that almost every provision of Rules 5 and 6 of the Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1974 (hereinafter referred to as the Rules of 1974) has been violated by the Inquiry Officer and the authority during the disciplinary proceedings against him. These objections which are contained in pars. 13 of his appeal may also be reproduced. The same are as under: "It would also be convenient to deal at this stage with the question as to whether the provisions of rules 5 and 6 of Efficiency and Discipline Rules were observed. The appellant's submission is that each and every rule applicable to the appellants' case was infringed.
(I) The provisions of the rules are mandatory.
(II) Rule 5(1) lays down that approval of the authority to the suspension of the accused officer "shall" be obtained by the authorised officer if the period of suspension exceeds three months and that after the expiry of three months on each occasion such approval shall be obtained.
' The appellant remained under suspension for a period of 11 months and 16 days (from 14-4-19-6 to 29-3-1977). This period necessitated obtaining approval of the Authority on three occasions. Not on a single occasion was the approval obtained. The appellant's suspension after 13th July, 1976 became illegal. (I may, if so advised, prefer a claim against the Government for payment to me of the full pay plus allowance which I would have drawn, had I not been suspended, in a civil Court).
(iii) Rule 5(2) lays down that the Authority "shall" determine whether inquiry should be conducted through an Inquiry Officer or whether it shall be conducted through an Inquiry Committee. The Authorised Officer did decide that the Inquiry should be conducted through an Inquiry Officer, but he simultaneously decided that if the appellant is found guilty of the charges, a major penalty would be imposed. The Authorised Officer had not an iota of evidence before him when he took the decision about the imposition of major penalty. He had not even the explanation of the appellant before him ' The Authorised Officer acted as it the old rules were applicable to the appellant's case. Under the old rules, on receipt of an complaint against an officer, preliminary inquiries were made by an officer higher in status than the accused officer, only the question of the imposition of a major or minor penalty was determined and communicated to the accused. The inquiry against the appellant has been conducted under the new rules and not under the old rules.
(iv) Rule 5(4) lays down that after receipt of report from the Inquiry Officer the Authorised Officer "shall" determine as to whether a major penalty or a minor penalty may be imposed. The determination of the penalty required the Authorised Officer to apply his mind and arrive at an Independent decision. The Authorised Officer merely endorsed the finding of the Inquiry Officer and recommended the penalty of removal from service, which the Inquiry Officer was not competent to do.
(v) Rule 6( i) lays down that a charge "shall" be framed and communicated to the accused officer together with statement of allegations explaining the charge and any other circumstances which are proposed to be taken into consideration.
' The Authorised Officer framed not one but three charge-sheets during a period of one year and 4 months. The charges pertained to the same allegations. The Authorised Officer did not explain the charges nor did he state the other circumstances which were to be taken into consideration.
(ii) Rule 6(3) lays down that the Inquiry Officer shall inquire into the charges and may examine such oral or documentary evidence as may be produced by the prosecution or the accused.
' The prosecution did not produce any oral or documentary evidence in support of the high- sounding charges. Thereupon the Inquiry Officer assumed the functions of a "Court" and summons what he calls a Court witness i. e. The Chief Goods Clerk of P. W. R., Quetta. This Court witness stated that the statements furnished by the Railway Department to the Member, Board of Revenue may be entirely false. The Inquiry Officer made a part of the record, the statements furnished by the Customs Department without making the Customs Officer a "Court" witness and thereby depriving the appellant the opportunity of cross-examining the Customs Officer. Incidentally it may be pointed out one of the statements furnished by the Customs Department contain a mistake in the total to the tune of one lakh and eighty thousand pounds of the tea alleged to have been imported into the Chagai District and another statement pertained to Mashkhel, a place situated not in the Chagai but in Kharan District.
' Relevant portions from the evidence of the Chief Goods Clerk; the two statements furnished by the Customs Department referred to above, and extract from the report of the Inquiry officer about this issue are attached marked Annexures A-15, A-16, A-17 and A-18.
(iii) Rule 6(4) lays down that the Inquiry Officer shall hear the case from day to day and inform the Authorised Officer of the adjournments granted. The reply to the final charge-sheet was given on I0th May, 1976. After the lapse of ten months, the Inquiry Officer took up the case in February and closed the case on 7th February, 1977. No order sheet was kept. No reports about grants of adjournments were made.
(iv) Rule 6(6) lays down that the Inquiry Officer shall submit his report within ten days of the completion of the inquiry. He submitted his report after the lapse of more than one month on 9-3- 1977."
' Besides the above legal pleas the appellant has also alleged that the Inquiry Officer, Mr. Fetch Khan Khajjak was biased against him and that he has based his findings on no evidence whatsoever.
4. Notice was issued to the respondent who have filed written objections to the effect that no illegality or irregularity, as alleged by the appellant, was committed in conducting the proceedings against the appellant and that the impugned order was lawfully passed. The report of the Inquiry Officer has also been annexed with there objections. This report shows that the Inquiry Officer had exonerated the appellant of the charges of accepting the Illegal gratification for issuing permits and mixing uo with notorious smugglers but found him guilty of having assumed a style of life which was disproportionate to his known source of his income. He also held that in issuing permits for tea etc. In large quantities in discriminately for the border areas the appellant did not use his discretion wisely but rather acted with mala fide intention, which implies that he helped the smugglers.
5. From the findings of the Inquiry Officer it would appear that the only charge which was proved against him was that the appellant had assumed a style of life which was disproportionate to his known sources of income, which in other words means that the appellant could reasonably be considered corrupt in terms of rule 3(c)(ii) and (iii) of the Rules of 1974, and that he was also guilty of misconduct in as much as he was instrument in smuggling of goods by issuing permits for border areas indiscriminately.
6. Taking legal objections of the appellant first, his plea that almost every mandatory provision of rules 5 and 6 of Rules of 1974 has been violated by the Inquiry Officer and the Authority and therefore the entire proceeding should be held to have been vitiated, does not appear to be correct. His first objection is that before the commencement of the inquiry he was placed under suspension and remained under suspension for more than 3 months for which no approval of the authority was taken as required by rule 5(1). This fact has not been admitted by the respondent who have asserted that the period of suspension was validly extended with the approval of the authority. There is nothing on record to verify the veracity of otherwise of the conflicting assertions as to the periods in this respect. However in the absence of the record the presumption shall be that the period of suspension was extended in the normal course of law. This presumption is justified in view of section 114 of the Evidence Act. Even otherwise this objection is not fatal to the legality of the disciplinary proceeding against the appellant which had commenced subsequent to his suspension. The main proceedings started from the stage when the charge-sheet was served upon him. Hence any defect in the order of suspension of the appellant shall have no effect on the main disciplinary proceedings. This objection therefore is overruled.
7. The next objection is that the Authorired Officer while deciding that an inquiry shall be held through an Inquiry Officer against the appellant, further decided that in case the charges are proved the same might entail any of the major penalties contemplated by rule 4 of the Rules of 1974. According to the appellant, the mention of the penalty in the charge-sheet was illegal because the decision about the penalty was to be taken after submission of the report of the Inquiry Officer. It is therefore, pleaded that the rule 500 has been violated. This objection again appears to be frivolous. The charge-sheet simply says that if as a result of the inquiry any of the allegations mentioned in she charge sheet, are found to have been proved, then the appellant might be liable to a major penalty as envisaged in rule 4. We are unable to see which of the provisions of the Rules, has been contravened by mentioning the penalty proposed to be imposed, in case the charges are proved against the appellant. It appears that the mention of the penalty in the charge-sheet was the result of abundant caution on the part of the Authority. This was done to put the appellant on his guard so as not to take him by surprise. Neither any prejudice has been caused to the appellant nor any miscarriage of justice has been occasioned by this act of the respondent. The objection therefore about the frame of the charge-sheet has no sat stance.
8. The next objection is that the Authorised Officer after examining the report of the Inquiry Officer had to decide whether major or minor penalty is to be imposed. It is alleged that in the present case the Authorised Officer did not apply his mind but simply accepted the recommendation of the Inquiry Officer as to the penalty and imposed the same penalty. Whether the Authority or the Authorised Officer applied their mind or not is something subjective which is within the knowledge of the Authority or the Authorised Officer. There is nothing on the record to suggest that the Authority or the Authorities had failed to apply their mind or that they had acted in a mechanical way. The argument of the learned counsel for the appellant is that the inquiry officer had gone beyond the scope of his function by recommending penalty also and the same penalty has been accepted by the Authority, the presumption therefore should be that the Authority had acted in a mechanical way. There is no warrant for this presumption. The order of removal of service would show that the Authority had examined the inquiry report thoroughly and had is come to the conclusion thereafter that the appellant should be removed. If the decision of the Authority happened to coincide with the gratuitous recommendation of penalty made by the Inquiry Officer, it would not follow that the Authority had mechanically accepted the recommendation of the Inquiry Officer without applying its mind. No doubt it was not within the domain of the Inquiry Officer to recommend penalty. His function was to determine whether the charges have been proved or not He performed this function but be went beyond it and also recommended that the appellant should be removed from service. This act of the Inquiry officer was gratuitous, but it does not mean that whole inquiry should be held to have been vitiated. The Authority was entitled simply to ignore it. If the final order of the Authority happened to coincide with the recommendation of the Inquiry Officer regarding the penalty, it would not necessarily lead to the presumption that the Authority had mechanically accepted the recommendation of the Inquiry Officer without applying its mind. This objection is also overruled.
9. The next objection is that the statement of the allegations supplied alongwith the charge-sheet was a mere repetition of the contents of the charge-sheet and that the circumstances which the Authority sought to take into consideration were not mentioned therein. It is therefore, alleged that rules 6(1) of the Rules of 1974 has been violated. No specific form of charge or the statement of allegation has been prescribed by the Rules. In the present case the Authorised Officer had framed the charge in such a way that the entire details of the facts had been mentioned therein. The charge-sheet itself was exhaustive and as such the statement of allegations could not be expected to be anything more than the repetition of the charge-sheet. The charge-sheet should not have contained the facts in detail. The Authority should have left the details of the allegations to be incorporated in the statement of allegations. But by way of abundant caution, if the Authority included the details of the allegations in the charge-sheet itself. I am unable to see how the Rules have been contravened or prejudice has been caused to the appellant. The defect in the charge- sheet or the statement of allegations will not be fatal to the disciplinary proceedings unless it is shown that substantial miscarriage of justice was occasioned as a result thereof. We are unable to find any miscarriage of justice having been resulted due to any defect in the charge-sheet or the statement of allegations.
10. The next objection is that the Inquiry Officer assumed the functions of a Court and summoned certain witnesses as Court witness. It cannot be said that the Inquiry Officer was not entitled to summon any witness as a Court witness and examine him. The rule 7 of the Rules of 1974 have given the Inquiry Officer all the powers of a civil Court trying a civil suit under the Code of Civil Procedure. He was therefore empowered to summon any witness as a Court witness in the interest of justice in exercise of all the powers vested in him as a civil Court.
11. The next objection is that the Inquiry Officer did not proceed with the inquiry from day to day and that even after the conclusion of the inquiry he had not submitted the report to the Authorised Officer within 10 days according to sub-rules (4) and (6) of rules 6. So far as the failure of the Inquiry Officer to conduct proceedings from day to day is concerned, the Rules of 1974 did not preclude him from adjourning the inquiry from time to time for reasons to be recorded in writing.
There is no mention that the Inquiry Officer had adjourned the inquiry from time to time without recording his reasons. The appellant has not got the record of the inquiry summoned and examined for this purpose. Again, even if the e had been any irregularity in adjourning the inquiry, it will not strike at the root of the legality of the proceeding unless any miscarriage of justice or prejudice Is alleged. The same may be said about the submission of the inquiry report to the authority after a lapse of more than a month instead of 10 days. The purpose of prescribing time limit in this respect was to ensure expeditious disposal of the proceedings. If .There has been any deviation from this time limit, the same will not vitiate the entire proceedings, unless it is proved that the accused has been prejudiced or that substantial miscarriage of justice has been caused to him. It transpires from the inquiry report that the proceedings had to be adjourned from time to time due to summoning of the Court and the defence witnesses. I do not think that any prejudice or miscarriage of justice has resulted by the adjournments or by the submission of the inquiry report after a period of one month instead of 10 days.
12. The objection upon which the greatest emphasis has been laid by the learned counsel for the appellant is that the Inquiry Officer was biased and that he has found the appellant guilty of the charge in spite of the fact that these was absolutely no evidence on behalf of the prosecution. So far as the plea of bias is concerned, the appellant never represented to the Authority for appointment of another Inquiry Officer on this ground. During his arguments even the learned counsel for the appellant conceded that there may not be a ''factual bias" on the part of the Inquiry Officer but there certainly was "legal bias". We are unable to comprehend the connotation of "legal bias". If there was no factual bias then it must be held that in fact the Inquiry Officer had no bias against the appellant. The learned counsel for the appellant perhaps means that as the Inquiry Officer bad applied the law wrongly or had not followed the law properly, therefore he must be held to be legally biased against the appellant. I have not come across any such bias in legal decisions.
If the law is not appreciated or applied properly then there is always a remedy by way of appeal or review. But the Court or the Tribunal responsible for applying the law wrongly or not appreciating the law properly cannot be said to be having "legal bias".
13. Now I come to the last objection that the finding of the Inquiry Officer that the appellant was living beyond his means was without any justification to the record of the Inquiry Officer. It may be stated that it was the function of the Authorised Officer and the Authority to have examined the inquiry report and passed necessary order This Tribunal cannot assume the role of an Inquiry Officer and substitute its own finding for that of Inquiry Officer. We have to see whether the procedure as prescribed by the rules of 1974 has been properly followed or not. If the Inquiry Officer has given a wrong finding of fact, it will be beyond the domain of function of this Tribunal to correct that finding of fact unless it is shown that the finding is manifestly perverse.
14. In the present case the Inquiry Officer has found that the appellant was living in a house worth rupees two lakh. This house was not recorded in his name but was said to have been purchased by his mother-in-law Zuhra Begum. But this lady did not live in this house. There was no evidence that the appellant paid any rent to this lady either. The Inquiry Officer had examined a clerk of the Sub- Registrar who simply proved the registration of the sale deed in favour of the lady, but at the same time he stated that the value of the house was not paid by the lady at the time of the registration.
Again the Inquiry Officer has also found the house was ostensibly purchased for Rs, 2 lakh, but actually it was worth much more than that. Smaller houses in the neighbourhood were of higher value than Rs, 2 lakin.
15. When once it was proved that the appellant was prima facie living beyond his means, then the onus shifted upon him to prove that he had the means to Justify that standard of life. The Inquiry Offices was therefore justified in placing this onus upon him, and the latter could have discharged this burden best by producing the lady in evidence in the defence, which he did not do. Whenever there is the question of real owner vis-a-vis the ostensible owner in respect of a house, then one of the most important factors which may be taken into consideration to resolve the question will he as to who is in actual physical possession of the house and who had paid the sale price therefor.
The appellant is admittedly in actual physical possession of the house. There is no proof that he had been paying any rent to the lady. Further he was in a position to prove that the lady had the capacity to pay the purchase price for it and did pay it, but he withheld this evidence by not examining the lady is his defence.
16. Then again it is an admitted fact that as Political Agent the appellant was maintaining a car. His explanation is that his car was burnt by hooligans in an incident during discharge of his duty and that he was granted cash compensation by the Government by which he had purchased another car. But he has not explained how the car which was burnt was purchased by him. Under these circumstances if the inquiry Officer found that the appellant was living a life beyond his means, it cannot be said that the finding is manifestly perverse. The same can be said about the finding of the Inquiry Officer that the appellant has been issuing permits for tea etc without using wise discretion According to the Inquiry Officer even the number of the permits admitted by the appellant, was in excess of the requirements of the population of the area. No exception can be taken to the finding of the Inquiry Officer that so many permits were issued by the appellant with ulterior motives.
17. For the above reasons I am of the view that no case has been made out to justify interference with the impugned order, Consequently the appeal is dismissed.
' MALIK HABIBUL LAB KHAN ( MIN BB R). -This is an appeal under section 4 of Baluchistan Service Tribunal Act of 1974 against the order of Government of Baluchistan dated the 30th March, 1977 whereby appellant was removed from service. The said order briefly confines to facts and grounds that the removal was based on the inquiry made by Mr. Fateh Khan Kajak, Member Board of Revenue-11 on the charges firstly that appellant accumulated huge amount of money by accepting illegal gratifications for issuing permits for second hand clothing, onions and potatoes etc. Secondly, that the said appellant has assumed style beyond his means and has purchased a house worth rupees five lace in the name of his mother-in-law which is disproportionate to his known sources of income and had been associating and mixing up with totorious smugglers and helping them in their smuggling operations.
2. The appellant has assailed the above order on following facts, grounds and issues legally to be observed :
(a) The Efficiency and Discipline rules 1974 are mandatory and its sub-rules 5 and 6 have been infringed in the course of inquiry.
(b) The findings of Inquiry Officer on Charge No, 2 have been based or suspicious conjectures, presumption and not on evidence of legal nature. (Preferably appellant refers to subsection (3) of section 6, Efficiency and Discipline Rules, 1974).
(c) The inquiry officer bad personal disliking for the appellant and as such he was guided by the Law Department in the course of inquiry that a questionnaire issued to be answered by the appellant was not proper (legal) as it was not framed on the basis of main charge levelled against appellant (it came to the notice of Tubuai that a number of charges issued from time to time. In my capacity of a member will consult sub-rule (I) of rule 6 of Efficiency and Discipline Rules, 1974 regarding charge) which was allowed one charge in consequence of certain allegations t, e, a charge-
(a) The authorised Officer has considered the presumption and opinion of Inquiry Officer while bringing an indictment against the appellant and not on the facts that he has brought on record legal evidence which is documentary or otherwise.
3. The respondent while meeting the requirements of appellant has not agreed with the contents of appeal and the ground set forth by appellant. He has said to the extent in his rejoinder at page 3 while answering para. (4) and its sub-clause (iii). That the Inquiry Officer has based his findings on evidence which came before him aria also on circumstantial evidence. At this stage I would refer to Inquiry Officer's report at its para. 9 which in substance indicates that there was no prosecution evidence. So he was compelled by circumstances to examine appellant and his defence. The Inquiry Officer at para. 32 of his report says that no evidence was produced to prove that appellant was accepting illegal gratifications Sub rule (3) of rule 6 of Efficiency and Discipline Rules, 1974 famed under the section 25 of Civil Servants Act, 1974 has the force of law and requires that oral and documentary evidence is requirement of legal nature in as inquiry. Circumstantial evidence under section 60, Law of Evidence (by B. Bailak and S. S Sastry of 1957 Volume II at page 223, para. 9 says that "circumstantial evidence must be established by direct evidence'. So that is a void in the inquiry.
4. At para. 14 the Inquiry Officer in his report indicates that appellant, did not issue fictitious permits to encourage smuggling. At pars. 32 he says that there was no evidence aglinit appellant to accept illegal gratifications in lieu of permits. At para, 15 he says that another independent agency f. e.
Anti-Corruption Department could find nothing against him. At para. 17 he says that the appellant was not mixed up with smugglers to accept illegal gratification. At para. 25 the Inquiry Officer says that appellant did not exceed the limit of issuing permits so far live stock eatables or food is concerned. However there was no limit fixed in case of old clothing.. At pace. 32 in the mind he says that the Railway Department did not copies of permits issued by appellant, This would revely that the documentary evidence are not forthcoming against the appellant at this stage to indicate his connivance with smugglers.
5. So far the luxurious or a big house Is concerned the Inquiry Officer at para. 35(2) says that on circumstantial basis he considers that the (house) belongs to appellant. At para. 33 at page 14 be indicates that on the presumption given rise at the stage he considers that the house belongs to appellant. Presumptions have no place to prove guilt unless from extraneous and concrete, direct and independent evidence it is proved.
6. From the facts and record it would transpire that no guilt against the appellant has been proved.
The inquiry has been defective when a questionnaire against the advice of law Department was made the series of inquiry. Charges were amended against the rules. Had this been done there should have been different set of allegations. In view of all such facts when no guilt is proved, justice should be imported to appellant and his appeal should be allowed. As without proof a guilt we should not agree with the orders which have resulted in appellant's punishment on such facts which are before this Tribunal.
' MALIK ABDUL SAMAD(MEMBER).--I have carefully gone through the divergent views of the learned Chairman and Member of the Service Tribunal. Both of them have discussed the case at length and have given cogent reasons in support of their final opinion about the guilt or innocence of the appellant. The worthy Chairman of the Tribunal has he the appellant guilty of the charges and has dismissed his appeal, whereas the learned Member has acquitted him of all the charges by admitting his appeal. I do appreciate the style and depth of their arguments but do not deem it proper to offer any comments on the weight and value of their respective stand-points. However, while going through the record of the case I have come cross some serious legal defects in the proceedings which need to be enumerated, before I give my opinion. These are :-
(1) There were only three charges framed against the appellant and the Enquiry Officer should have confined himself to the enquiry of only these three charges which in tact, were the terms of reference but he went beyond his jurisdiction and framed a sort of question are which was uncalled for and did not fall within the ambit of his enquiry. The questions Forms Nos. 12 to 21 did not pertain to the charges framed by the Administrative Department. Even the Law Department when consulted on this issue, tendered its advice against such illegal and superfluous exercise.
(2) At the outset, this enquiry was started on a report from Mr. Jehangir Shah, an ex-Member, Board of Revenue. His complaint was based on some information from an informer whole name he did not want to disclose, during t course of enquiry, It meant that the complainant or the reporter retracted from what he had said earlier which necessitated an enquiry against the accused. The enquiry should have instantly been dropped because of having lost the very base, on which the whole superstructure wasato be built.
(3) No prosecutor was appointed by Government in the S&OAD to help the Enquiry Officer during the enquiry despite the advice given by the Law Department. It indicated that the prosecution had no proof to substantiate the charges brought against the accused.
(4) The first charge was not accompanied by a statement of allegations. The other two charges were framed during the course of enquiry. The statement of allegations along with the charge is a legal requirement, which were not fulfilled. It indicates that the Administrative Department was not convinced about the authenticity of the allegations.
(5) The accused by coted the enquiry but still the Enquiry Officer had proceeded against him. This unilateral action on the part of Enquiry Officer made in fact denied to the accused, the right of self- defence. The right of self-defence is a mandatory legal requirement in order to meet the cods of justice and equity. Such an attitude tantamount to condemnation of a person without hearing him.
From the behaviour of the Enquiry Officer one can easily order the conclusion that he was over- zealous in conducting the enquiry and declaring the appellant as guilty.
(6) A report from the Commissioner, Quetta Division is also said to have mentioned that most of the reports against the accused were fabricate I and unfounded. This report leads to believe that the information passed on S&QAD was based on more here say. Failure of Mr. Jehangir Shah to substantiate the contents of his report, further proves that the information received by the Government was not based on an authentic source. Even the Enquiry Officer has admitted that the prosecution could not produce even a single witness despite its best efforts.
(7) As a matter of legal necessity the authorised officer is required, under the rules, to apply his mind seriously into legal and factual requirements which shall have to be observed by the Enquiry Officer. In case some defects come to this notice during the course of enquiry or on receipt of a report, the case is to be remanded to the Enquiry Officer for fulfilment of the requirements of procedure as given under the rules. In this case, the Enquiry Officer in flagrant disregard of the prescribed procedure, conducted the enquiry in an utmost haste to present his report and get rid of appellant.
(8) The Enquiry Officer was not required to propose any punishment in his enquiry report. Such a proposal is in contravention of the Civil Servants Act of 1974 and the Efficiency and Discipline Rules of 1974.
(9) All the three charges levelled against the accused have not been proved by any direct evidence. This fact has been admitted clearly by the Enquiry Officer in his enquiry report. Ho has based his report against the accused only of the ground of presumption/conjecture which is not admissible in law as per provisions of the Evidence Act.
(10) The house mentioned in the charge-sheet does not belong to the accused/appellant as borne out by the registration of sale-deed in the revenue record. It belongs to his mother-in-law who is naturally beyond the legal scope and jurisdiction of this enquiry. She is a third party and has nothing to do with the enquiry. There are documentary evidence that the said house belongs to Mst. Zuhra Begum his mother in-law, who is also stated to be a lady of means, in the enquiry report.
This argument of the Enquiry Officer does not attract the provisions of law that the accused is living in the very same house and not his mother-in-law. The mere possession/occupation of a house does not confer any right of ownership on the occupant. The argument, therefore, is of no legal consequence in view of the documentary evidence available.
' In the end I may say that I have given serious consideration to the entire record of this case but failed to find out any charge directly proved against the accused. The findings of the Enquiry Officer are manifestly perverse and biased.
' In the above circumstances, I am inclined to agree with the views expressed by my learned colleague, Malik Habibullah Khan and accept the appeal. The order passed by the authorized Officer is based on an enquiry report which suffers from serious infirmities and, therefore, needs to be rescinded.
' ORDER OF THE TRIBUNAL.
In view of the majority decision this appeal is allowed and the impugned order is set aside. The appellant shall be treated to in service on from the date of the impugned order i. e. 30th Marc', 1977.
As the impugned order has been set aside on account of defects in the inquiry procedure, this Judgment shalt not preclude the Authority from holding fresh inquiry through an impartial Inquiry officer, if so advice.