1. ' ABDUL QADEER CHAUDHARY (CHAIRMAN).-The present appeal has arisen out of the following facts :- ' The service particulars of the appellant as given by him in the memo. Of appeal and not denied by the respondent are as under :- "The appellant was appointed on 2nd August, 1955 by Wazir-e-Azam of Ex-Baluchistan States Union as Superintendent in the Secretariat service of B. S. U."
2. ' Appellant was confirmed as Superintendent in the year 1963.
3. ' Appellant was promoted as Senior Superintendent in the year 1969 in West Pakistan in the Office of Commissioner, Kalat Division.
4. ' Promoted as Section Officer in the Secretariate of Baluchistan in Health Section on 31-9-1970.
5. (Annexure 'A') and confirmed as Section Officer vide Annex: 'A'-1.
6. ' The appellant was promoted to Senior Scale (Grade No, 18) with effect from 1-6-1973 vide Order No, SO-H-27(4)/S&GAD-70 dated the 10th September, 1975 Annex: 'B'.
7. ' That the appellant was selected for promotion to the post of Deputy Secretary by the Selection Committee headed by respondent No, 1, the Chief Secretary, Government of Baluchistan, Quetta.
8. ' It is the case of the appellant that on 13th April, 1976 (Annex. `H') he received a show-cause notice from the respondent No, 2 which reads as under :- "Whereas it has been reported that you have the persistent reputation of being corrupt and have also been indulging in other malpractices.
9. ' You are hereby called upon to show cause within seven days of the receipt of this notice as to why action under the Baluchistan. Civil Servants (Efficiency and Discipline), Rules, 1974, should not be taken against you, which may amount to award of a major penalty. Please take note that in case of no reply from your side the matter will be decided unilaterally. "
10. ' The appellant replied to the show-cause notice denying the contents of the show cause notice.
11. According to him the allegation was baseless.
12. ' On 14th May, 1975 a notification was issued for compulsory retirement of the appellant with immediate effect. The notification is reproduced below :- "Whereas Mr. Muhammad Amin Baluch, Section Officer (Social Welfare), Health and Social Welfare Department, Government of Baluchistan was served, with a show-cause notice for persistent reputation of being corrupt and having indulged in other malpractices by the Secretary to the Government of Baluchistan, Services and General Administration Department.
13. ' And whereas after considering the reply of the accused officer Mr. Muhammad Amin Baluch, the authorised officer is satisfied that the said charge of persistent reputation of being corrupt and having indulged in other malpractices have been proved and the said authorised officer has recommended that a major penalty be imposed on him.
14. ' And whereas the Government after considering the case are satisfied that the said Mr. Mohammad Amin Baluch should be compulsorily retired.
15. ' Now, therefore, in exercise of the powers conferred by clause (b) of sub-rule (4) of rule 5 of the Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1974, the Government of Baluchistan are pleased to order compulsory retirement of the said Mr. Muhammad Amin Baluch with immediate effect. This is issued with the prior approval of the President of Pakistan."
16. ' The appeal has been contested by the respondent. It is admitted that the appellant was promoted to Senior Scale (Grade-18) by order dated 10th September, 1975. It is also admitted that the case of the appellant was cleared for promotion to the rank of the Deputy Secretary by the duly constituted Selection Board, in its meeting held on 1-11-1975. The respondent has stated that the show-cause notice was served on the appellant under and in accordance with the provision a sub-rule (3) of rule 5 of the Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1974.
17. (Hereinafter referred to as rules). The decision to retire him compulsorily from service was taken after due consideration of his explanation as required under sub-rule (4) of rule 5 of the (said Rules. It was not necessary to have an enquiry conducted against the appellant through an Enquiry Officer. It was not mandatory to adopt the detailed procedure laid down in rule 6. The appellant was afforded a reasonable opportunity.
18. ' The short question for determination is whether the provisions of law have been complied with in the instant case. The grievance of the appellant is that no opportunity was afforded to him by the respondent and moreover, no detailed enquiry was conducted by the authorised officer.
19. ' No doubt under rule 5 (2) of the Rules, the authorised officer shall decide whether an enquiry should be conducted through an Enquiry Officer or an Enquiry Committee. If he so decides the procedure indicated in rule 6 shall apply. He is also authorised under sub-rule (3) of rule 5 of the Rules, to decide that it is not necessary to have enquiry conducted through an Enquiry Officer. In case the authorised officer chooses to apply the provisions of sub-rule (3) then he shall (a) by order in writing, inform the accused of the action proposed to be taken in regard to him and the grounds of the action; and (b) give him a reasonable opportunity of showing cause against that action: ' Provided that no such opportunity shall be given where the authority is satisfied that in the interest of the security of Pakistan or any part thereof it is not expedient to give such opportunity. Therefore, the fate of this appeal hinges on the interpretation of sub-rule (3). It is, therefore, to be seen whether sub-rule (3) has been properly and correctly applied in this case.
20. ' The allegations mentioned in the show-cause notice (Annex. 'H') are that it has been reported that the appellant has the persistent reputation of being corrupt and has also been indulging in other malpractices. Show-cause notice to our mind is neither clear nor specific. In fact this is a vague and misleading notice. The show-cause notice has not been accompanied with the allegations.
21. Moreover, the nature of penalty to be imposed on the appellant has not been clearly described. It is only stated that major penalty would be awarded. There are four kinds of major penalties as described in rule 4 (1) (b). It was the duty of the authorised officer to inform the accused about the action proposed to be taken in regard to him in an unequivocal terms. The appellant has stated that he has an unblemished service of about 23 years. In support of his contention he has filed many documents. These documents have not been contradicted or refuted by the respondent. His case for promotion as Deputy Secretary was recommended by the duly constituted Selection Board in its meeting held on 1-11-1975. The appellant was served with a show-cause notice on 30th April, 1976. Therefore, before taking extreme action of major penalty against a Government servant, he must be supplied with the substance of allegations from which an ordinary prudent man can understand that what are the charges which he has to meet with. The show-cause notice must be accompanied with the substance of the allegations or the grounds of action. In a case where action is being taken under sub-rule (3) of rule 5, it is all the more necessary that the officer concerned must be informed of the material allegations. In our opinion the officer shall be informed about the action proposed to be taken and the grounds of such action in clear terms, which are understandable. Mere show-cause notice which is not clear and without supplying the ground o action does not amount to the compliance of rule 5 (3). It is also provided that a reasonable opportunity of showing cause against that section must be provided to the accused.
22. There is only one proviso where such opportunity shall not be given and where it is in the interest of security of Pakistan, This is not the position in the present case. Moreover, under sub-rule (4) of rule 5 the authorised officer shall determine whether the charges have been proved, and if it is proposed to impose a major penalty, he shall forward the case to the authority alongwith the charge and statement of allegation served on the accused, the explanation of the accused and his own recommendations. In the present case a mere show-cause notice was served on the appellant. The appellant had submitted his reply denying the allegations made in the show-cause notice. There does not appear that any recommendation was made by the order impugned in this appeal passed by the respondent No, 1 also shows that on the basis of show-cause notice and the reply of the appellant, the appellant was compulsory retired. From the order it is not clear that the authority had applied his mind in passing the order.
23. ' We had asked the Assistant Advocate-General to place on record for our perusal, the relevant material so that we may see whether the legal formalities have been observed. The learned Assistant Advocate-General frankly conceded that he cannot produce any record in support of the contentions raised by the respondent. However, he has produced a letter addressed by Secretary S&GAD to the Deputy Martial Law Administrator, dated 24th September, 1977 wherein it has been stated that wheat was lost in transit. But this entire letter does not reveal that the appellant was held responsible for the loss of wheat or for any other act of misfeasance.
24. ' No doubt it is correct that this Tribunal would not assess the evidence and substitute its own reasoning in place of the one arrived at by the respondents, but if it is a case where the basic requirements of rules have been violated and the Government servant has been punished in violation of any rule then this tribunal is competent to strike down such illegal order.
25. ' In the present case the appellant was not called upon to meet the charges of any definite nature.
26. Moreover no reasonable opportunity was afforded to the appellant as laid down in rule 5 (3) (b).
27. The reasonable opportunity does not merely mean, the explanation of an accused but something more than that, which depends on the circumstances of a particular case. As for instance, a personal hearing and production of such evidence which may be considered necessary to rebut the allegations made against him. It also includes a definite and clear charge and the substance of evidence in support of the charge. It is reported in "The Government of N.-W. F. P. Through the Secretary to the Government of N.-W. F. P. Communications & Works Department, Peshawar v.
28. Mohammad Said Khan and another that it is possible to conceive of a case of gross misconduct arising from a gross error of judgment which may be attributable to want of due diligence. In such cases much will depend upon the degree of care which one is required to exercise in a given situation. Again standard of conduct or care as the case may be, may vary from person to person depending upon his position in life, and the nature of his responsibility in a given situation. In order to constitute "grave misconduct" the misconduct must be of a higher standard than that which would justify the employer in dismissing his service and must be of a very serious character." It would be of advantage to refer to Muhammad Ihsan Khan v. The Province of West Pakistan and the relevant observations in paras. 17 and 18 of the report are : "The central point on which the decision of the case solely hinges is whether in the instant case the statutory guarantee for which provision has been made in subsection (3) of section 240 of the Government of India Act, 1935, had been complied with. This question depends upon the proper construction of the phrase "a reasonable opportunity of showing cause" and the words 'action proposed to be taken with regard to him'. These expressions came in for considerable judicial comment and observations before High Judicial Authorities including the Privy Council. The root authority on this point is the well-known case of The High Commissioner for India and another v. I.
29. M. Lail. At page 160, Lord Thankerton delivering judgment for the Board observed:- ' In the opinion of their Lordships, no action is proposed within the meaning of the subsection until a definite conclusion has been come to on the charges, and actual punishment to follow is provisionally determined on. Prior to that stage, the charges are unproved and the suggested punishments are merely hypothetical. It is on that stage being reached that the statute gives the civil servant the opportunity for which subsection (3) makes provision. Their Lordships would only add that they see no difficulty in the statutory opportunity being reasonably afforded at more than one stage. If the civil servant has been through an enquiry under rule 55, it would not be reasonable that he should ask for a repetition of that stage, if duly carried out, but that would not exhaust his statutory right, and he would still be entitled to represent against the punishment proposed as the result of the findings of the enquiry."
30. ' It would be manifest from the observations of their Lordships that the words "the action proposed to be taken" is the stage when actual punishment is provisionally determined, i. e. When the punishing authority has come to a definite conclusion of terminating the service of the civil servant concerned. The meaning put by their Lordships on the expression "reasonable opportunity to show cause" in paraphrase is when an enquiry against a dismissed servant is as it were, in two parts, where there is, first, a departmental enquiry and then a notice to show cause is served upon him by the authority which proposes to dismiss him, the Court has got to look at both parts of the inquiry in order to come to the conclusion whether a reasonable opportunity was afforded to the servant to show cause against the action proposed to be taken against him.
31. ' The question now arises is whether the term "reasonable opportunity to chow cause" gives a civil servant a right of calling defence at that stage. This question admits of a short answer in the affirmative for the short and good reason that right of calling defence is an indispensable attribute of a "show-cause notice". It will be complete negation of justice to ask a civil servant to show cause against loss of status on certain charges, permit him only to say that the charges were incorrect, but refuse him to:ecall evidence to prove his assertions. Cut out the right of defence from a show- cause notice and the constitutional guarantee provided for by subsection (3) is completely cut out.
32. The provisions of subsection (3) of section 240 would be rendered wholly illusory if a Civil Servant is1 2 merely given right of making a representation denying the correctness of the charges without proving it. The statutory guarantee provided for in subsection (3) of section 240 is founded on the principles of natural justice that no one should be condemned without a hearing and is clearly intended to protect a civil servant against the loss of his status against a capricious and arbitrary action and, therefore, a civil servant is entitled to a full and thorough enquiry into the charges before being deprived of his status as a public servant.
33. ' The principle laid down by the Supreme Court in the University of Dacca through its Vice- Chancellor and The Registrar, University of Dacca v. Zakir Ahmed is beneficial for the guidance of the Court, and tribunal, and the observation made is as under :- ' The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject-matter that is being dealt with, and so forth. Nevertheless, the general consensus of judicial opinion seems to be that, in order to ensure the "elementary and essential principles of fairness" as a matter of necessary implication, the person sought to be affected must at least be made aware of the nature of the allegations against him, he should be given a fair opportunity to make any relevant statement putting forward his own case and "to correct or controvert any relevant statement brought forward to his prejudice" of course, the person, body or authority concerned must act in good faith, but it would appear that it is not bound to treat the matter as if it was a trial or to administer oath or examine witnesses in the presence of the person accused or give him facility for cross-examining the witnesses against him or even to serve a formal charge-sheet upon him. Such a person or authority can obtain information in any way it thinks fit, provided it gives a fair opportunity to the person sought to be affected to correct or contradict any relevant statement prejudicial to him. In other words, "in order to act justly and to reach just ends by just means" the Courts insist that the person or authority should have adopted the above "elementary and essential principles" unless the same had been expressly excluded by the enactment empowering him to so act.
34. ' So also in Mr. Muhammad Jamil Asghar v. The Improvement Trust it has been held that the order of Administrative Authority based on existence of certain circumstances-Court can make an enquiry and declare order of such authority to be void if such circumstances are not found to exist.
35. ' The dictum laid down in the above-quoted Lahore authority also applies to the facts of the present case. In the present ease the appellant was not supplied with a statement of allegation/grounds of action and moreover, he was not informed of the action proposed to be taken in regard to him, in the terms of the judgment referred to above.
36. The upshot of the above discussion is that the order impugned in this appeal is struck down on the ground as it has been passed in violation of the rules 5(3) (4) and no opportunity was afforded to the appellant to meet the allegations. The show-cause notice was defective as the grounds of action have not been filed alongwith it. The appeal is accepted and the order of compulsory retirement is set aside. PLD 1973 SC 514 PLD 1963 Lah. 295 PLD 1965 SC 90 PLD 1965 SC 698 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.