1. ' BARKAT ALI BALOCH (MEMBER).---The appellant Sajjad Hussain Bhatti, as per his statement was appointed as clerk in the Department of Post Office/respondent and continued the service till the year 1989 when he was working as Assistant Treasurer. On 22-7-1989 the appellant in continuation of his previous application dated 6-6-1989, formally applied for grant of L.P.R. For a period of 157 days with effect from 7-9-1989 to 10-2-1990 with additional request for his retirement from Government Service with effect from 11-2-1990, vide Annexure-A of the appeal file. The said applications of the appellant is reproduced as under:- "Through Proper Channel.
2. ' Sub: Request for grant of L.P.R. For 157 days from 7-9-1989 to 10-2-1990.
3. ' Sir, ' With reference to my application dated 6-6-1989 for the grant of L.P.R. It is requested that I may kindly be granted L.P.R. For 157 days w,e,f, 7-9-1989 to 10-2-1990 and to retire from Government Service w,e,f, 11-2-1990.
4. ' Thanks.
5. Your obediently, (Sd.) (Sajjad Hussain Bhatti)
6. A.C.P.M., Karachi GPO (Try . Br . ) "
2. On 3-9-1989 the Office of the Postmaster General Metropolitan, Karachi with permission of the Competent Authority issued an order to the effect that the appellant will retire from service on pension with effect from 11-2-1999. Through this same order the request of the appellant for L.P.R.
7. For 157 days was also granted vide Annexure-B of the memo. Of appeal which is reproduced hereunder:-- "PAKISTAN POST OFFICE OFFICE OF THE POSTMASTER GENERAL METROPOLITAN KARACHI.
8. No, STAFF(P)/S-91 dated Karachi 3-9-1989.
9. ' The competent Authority has been pleased to allow Mr. S.H. Bhatti, ' Assistant Treasurer (S/G B-9) Karachi G.P.O. TO RETIRE FROM Government. Service on retiring pension with effect from 11-2-1990.
10. ' The competent Authority has further been pleased to grant him ' L.P.R. For 157 days with effect from 7-9-1989 to 10-2-1990.
11. Sd/-ASSTT . POSTMASTER GENERAL (STAFF)"
12. ' In the same month when the request of the appellant for L.P.R. As well as retirement/pension was granted by the Competent Authority, the Chief Postmaster. G.P.O., Karachi issued a letter (Annexure-C) ordering the suspension of the appellant with immediate effect till finalization of enquiry, in connection with misappropriation of Government money. Consequently a charge-sheet was issued against the appellant on 18-11-1989 alongwith statement of allegations by the Authorized Officer-cum-Chief Post Master, Karachi vide (Annexures-C-I and C-II) which are reproduced as under:-- CHARGE-SHEET ' Whereas, I am satisfied from the Enquiry Report of the team appointed by the Postmaster General, Metropolitan Karachi for enquiry regarding embezzlement of Rs,17,23,000 that the nature of allegations (enclosed) is such that a formal enquiry as contemplated by rule 5(2) of the Government Servants (E&D) Rules, 1973 is necessary and expedient.
13. ' Now. Whereas, I am of the view that the allegations if established would call the Major punishment of "DISMISSAL FROM GOVERNMENT SERVICE: AS DEFINED IN rule 4(b) of the aforesaid rules.
14. ' Now, therefore, as contemplated by rule 5(2) I Allah Bux Sahito the authorized officer and Chief Postmaster Karachi G.P.O. Hereby charge you, Mr. S.H. Bhatti A.T.R. Karachi G.P.O. Treasury (under Suspension) for: ' 1.MISCONDUCT 2. INEFFICIENCY.
15. 3.CORRUPTION.
16. ' And whereby I direct you further under rule 6(2) of the said Rules to put a written defence direct to the Enquiry Officer (Copy of the order of Appointment of Enquiry Officer enclosed). Within 10 days of the receipt of this charge-sheet .As to why the proposed action should not be taken against you and also stating at the same time whether you desire to be heard in person.
17. ' In case your reply is not received within the prescribed period, it shall be presumed that you have no defence to offer and the case will be decided ex parte on its merit."
18. (Sd.)
19. Authorized Officer cum-Chief Postmaster, Karachi G.P.O."
20. STATEMENT OF ALLEGATIONS ' Whereas you Mr. S.H. Bhatti, A.T.R. Karachi G.P.O. Treasury (Under Suspension) while working in G.P.O. Treasury w,e,f, 1-1-1985 to 5-9-1989 found involved in case of embezzlement of Government money alongwith M/s. Fazalul Haq Shahzad, Head Treasurer, Mushtaq Ahmed A.T.R. And Muhammad Iqbal Stamp Vendor during January, 1989 to September, 1989 and you also violated Articles 344, 345, 346 and 354 of P.O. Initial Account Code Vol. I. This case also reported to F.I.A. CCI and registered under F.I.R.No 20 of 1989.
21. ' You are, therefore, liable for disciplinary action punishable under Government Servants E&D Rules, 1973.
22. ' The above allegations are based on the findings of the enquiry report of the team appointed by the Postmaster General, Metropolitan, Karachi in this case.
23. (Sd.) Authorized Officercum-Chief Postmaster, Karachi G.P.O."
24. ' Both these actions were followed by 'order dated 18-11-1989 viz. On the same date when Mr. Akhtar Mirza, Superintendent (Export) Foreign Post Service, Karachi was appointed as Inquiry Officer to conduct the inquiry proceedings against the appellant in case for embezzlement of Government money.
3. On 3-10-1989 a F.I.R. Was registered with Crime Circle-I FIA, Karachi against accused/appellant as well as Fazal Haq Shazad, Head Treasurer, Muhammad Mushtaq, Assistant Turasurer, Muhammad Iqbal Stamp Vendor under sections 409/34, P.P.C., and 5(2) of P.C.A., 1947 by one Mirza Afzal Ahmed Baig, Senior Postmaster, G.P.O., Karachi. This registration of F.I.R. Resulted into the preparation of charge-sheet (Challan) against all the above-noted accused persons including the appellant on 3-10-1989. The Column No, 3 of this charge-sheet shows the appellant as well as all the other accused persons to be in police custody. This shows that the apppellant/accused Sajjad Hussain Bhatti was under arrest on 3-10-1989. This criminal case proceeded in the Court of learned Special Judge Central-I, Karachi and vide his judgment dated 28-1-1993 the appellant and his other co-accused were convicted. The main accused Fazal Haq Shazad was convicted and sentenced to suffer R.I, for 7 years with a fine of Rs,17,00,000 while the remaining accused viz. Sajjad Hussain Bhatti (appellant) and Muhammad Mushtaq were sentenced to suffer R.I. For two years and a fine of Rs,1,00,000 each. Subsequently the convicted appellant/accused Sajjad Hussainn and Fazal Haq Shahzad challenged their conviction in the Hon'ble High Court of Sindh at Karachi and vide judgment dated 9-9-1998 they were acquitted of all the charges. This judgment of the Hon'ble Sindh High- Court, Karachi, became final as the attempt on the part of Government to challenge this acquittal into the Hon'ble Supreme Court of Pakistan by way of appeal failed as the criminal petition filed by the State challenging the judgment of acquittal was declared barred by limitation vide order of the Hon'ble Supreme Court dated 7-6-1999.
4. In the meantime, the Departmental Authorities i,e, the Inquiry Officer submitted his inquiry report on 3-2-1990 Annexure-D of the Comments filed on behalf of the respondents. It will be important to reproduce this inquiry report, which is as under:- "ENQU IRY REPORT ' Mr. S.H. Bhatti A.T.R. KR G.P.O. Treasury/under suspension, was charge-sheeted by the authorized officer under Memo. No KR/F-4/890-90 dated 18-11-1989 on the allegation that he while working in G.P.O. Treasury w,e,f, 1-1-1985 to- 5-9-1989 found involved in case of embezzlement of Government Money alongwith M/S. F.H. Shahzad, Head Treasurer, Mushtaq Ahmed A.T.R. And Muhmmad Iqbal Stamp Vendor during January, 1989 to September, 1989 and violated Articles 344, 345, 346 and 354 of P.O. Initial Account Code Vol. I. According to statement of allegation, this case also reported to FIA C.C.I. And registered under F.I.R. No, 20 of 1989.
25. ' The Authorized Officer directed the accused to submit his written defence direct to undersigned within 10 days of the receipt of charge-sheet as undersigned was appointed Enquiry Officer in this case under E&D Rules, 1973 vide Order dated 18-11-1999.
26. ' Due to non-receipt of any written defence from the accused the undersigned addressed to Authorized Officer under Letter No,SFP/Export/ Enquiry-89/II, dated 14-12-1989 to intimate whether the official submitted any defence or reply in response to said charge-sheet. The Authorized Officer-cum-Chief Postmaster KR G.P.O. Endorsed a copy of his letter dated 18-12-1989 A/T the accused under which in documents of the case supplied to the accused he was directed to submit his written defence now within 3 days.
27. ' But again no defence was received up to 27-1-1990 hence undersigned again, addressed to the Authorized Officer on 28-1-1990 to intimate whether the accused submitted his defence or otherwise. The Authorized Officer again intimated that no defence has been submitted by the accused official.
28. ' Since no defence has been submitted by the accused official till now hence I have been compelled to enquire this case ex parte on and to submit my report on merit of the case.
29. ' According to the' enquiry report of the team appointed by the P.M.G. Metropolitan Karachi for enquiry of this case, the team on preliminary verification confirmed the embezzlement of Rs,17,23,000 on receipt of a report dated 24-9-1989 from Senior Postmaster Karachi G.P.O. Treasury and M/s. Shahzad, Head Treasurer, Mr. S.H. Bhatti and Mr. Muhammad Mushtaque Ahmed A.T.R.'s KR.
30. G.P.O. Were found involved. The team further reported that according to the statement of these officials, the said amount was given to one Mr. Muhammad Iqbal, Stamp Vandor KR G.P.O. On various occasions.
31. ' According to then written statement of Mr. S.H. Bhatti, dated 2-10-1989 the P.T. Clerk, Mr. Shamsuddin had to hand over P.T. Stamps to Mr. Muhammad Iqbal, Stamp Vendor and some amount was deposited in the treasury at that evening. The remaining amount used to be shown in the Deposit Cheques by us. Thus, the amount gradually increased to Rs,17,23,000. The accused in his statement given to the team further stated that he himself did not give any amount to Mr. Iqbal by his hand. He further said that this tendency was commenced under when Mr. Shahzad took over the charge as Head Treasure. He further deposed that this malpractice was only in P.T. Stamps and was not in currency notes. However, at one or two occasions, Mr. Iqbal has given some Prize Bonds to him and he kept these Prize Bonds as Part of Cash in Treasury.
32. ' After careful examination of the relevant papers, I concluded that no doubt the official is involved in the case of Embezzlement of Government Money alongwith other staff of the Treasury Branch and charges framed against the officials are proved.
33. (Sd.)
34. MIRZA MUHAMMAD ATHAR Enquiry Officer-cum-Supdt. Export Foreign Post, Karachi"
35. ' It was as late as 14-111 992 when the respondent No,2 issued a final show-cause notice against the appellant-Annexure-E of the comments, which is reproduced as under: "PAKISTAN POSTAL SERVICES CORPORATION OFFICE OF THE CHIEF POSTMASTER KARACHI G.P.O 74200 MEMO.NO KR/F-4/1/S/H.BHATTI/89/90, DATED 14-11-1992 .
36. ' As per records of this office enquiry report submitted by the Enquiry Officer, you were found guilty in case of embezzlement of Government money Rs,17,23,000 while working in Karachi GPO as Assistant Treasurer.
37. ' In view of the enquiry conducted by the Supdt. (Export) Fgn. Post Karachi you are responsible for the embezzlement of Government money Rs,17,23,000 also charge of gross 'Misconduct (2)
38. Inefficiency (3) Corruption has been proved against you. The Enquiry Officer has proved the allegation levelled against you. The enquiry report is enclosed herewith.
39. ' Whereas, you Mr. S.H. Bhatti, Assistant Treasurer (under suspension ) are, therefore, called upon to show cause and directed to submit your expiation within thirty days of receipt of this memo. As to why penalty of "Dismissal from Government Service "as provided under E&D Rules; 1973 may not be imposed upon you.
40. ' In case your reply is not received within the prescribed period, the case will be decided ex pane on its merit. You are further directed to state whether you desire to be heard in person or not (Sd.)
41. CHIEF POSTMASTER KAR.GPO"
42. ' Consequent to this show-cause notice the Chief Postmaster, Karachi, G.P.O. Issued the dismissal order of the appellant on 27-2.1993. (Annecure-F) of the comments. There is another final dismissal order issued by the same authority viz. Chief Postmaster G.P.O. Karachi dated 24-7-1999 containing final details whereby the previous order of dsmissal dated 27-2-1993 was reconfirmed and further order was passed to recover 1/3rd of the total amount which was considered as loss to the Government and thereby an amount of Rs,5,74,333 was ordered to be recovered from the appellant within 30 days of the passing of this final dismissal order dated 24-7-1999. It is, against this final order of dismissal and recovery of the amount that the appellant has filed this appeal against the said impugned order on 8-12-1999.The first dismissal order dated 27-2-1993 (Annexure-F) of the comments is reproduced as under:-- "PAKISTAN POSTAL SERVICE CORPORATION OFFICE OF THE CHIEF POSTMASTER KARACHI G.P.O.
43. MEMO.NO.KR/F-4/1/S.H. Bhatti/89/90, dated 27-2-1993.
44. ' The accused. Mr. Sajjad Hussain Bhatti (Assistant Treasurer Kararchi G.P.O. Try to under Suspension) was involved in the case of Misappropriation of Government Money Rs,17,23,000 in Karachi G.P.O. Try. 1989 by regarding the Court judgment announced dated 28-1-1993. They were convicted by Trial Court.
45. ' He is dismissed from the Government Service w,e,f, 29-1-1993.
46. (Sd.) CHIEF POST MASTER, KARACHI G.P.O."
47. ' And so also the final and detailed dismissal order dated 24-7-1999 passed by the Chief Postmaster Cenral, G.P.O. Karachi (Annexures-H and H-1) of the memo. Of appeal also reproduced as under:- 'OFFICE OF THE CHIEF POSTMASTER KARACHI G.P.O.
48. MEMO.NO. KR/F4/1/89-90.DATED 24-7-1999 ' Mr. Sajjad Hussain Bhatti who worked as Assistant Treasurer Karachi G.P.O. With effect from 1-1- 1985 to 5-9-1989 was found to have embezzled Government money during January, 1989 to September, 1989. He also violated Articles 344, 345, 346 and 354 of Post Office Initial Account Code Volume I.
49. ' A team of five officers was appointed for investigation in the case of embezzlement. On verification of cash and stamps balance of G.P.O. Treasury embezzlement of an amount of Rs,17,23,000 was confirmed, M/s. Fazalul Haq Shahzad, Head Treasurer, Sajjad Hussain Matti and Muhammad Mushtaq Ahmed, Assistant Treasurers Karachi G.P.O. Were held to the main officials responsible for causing loss to the Government to the extent of Rs,17,23,000 Mr. Sajjad Hussain Bhatti, Assistant Treasurer Was, therefore, found liable for disciplinary action under Govenment Servents (E&D) Riles,1973.
50. ' Mr. Sajjad Hussain Bhatti, Assistant Treasurer was, therefore, charge-sheeted under this office memo. Of even. No, dated 18-11-1989 on The following counts:--
(i) Misconduct
(ii) Inefficiency
(iii) Corruption.
51. ' And was called upon to submit his defence to the Enquiry Officer within 10 days of receipt of that memo. But he failed to submit his defence.
52. ' The Enquiry Officer proceeded ex parte and submitted his enquiry report dated 3-2-1990. After having examined the relevant papers, he concluded that there was no doubt that the official embezzled Government money alongwith other staff of the Treasury branch and charges levelled against the official stood proved.
53. ' He was served with a show-cause notice vide memo. Of even No, dated 14-11-1992 alongwith enquiry report to samit his explanation within 30 days but the said letter has returned back with remarks 'Refused'.
54. ' While the departmental action was under issue, the accused was convicted by the Trial Court. A summary decision was, therefore. Issued under this office order number even dated 27-2-1993 whereby the official was dismissed from Government service with effect from 29-1-1993. No detailed decision in the departmental action, which is independent of Court proceedings, was issued. The departmental case is being disposed of under the current under.
55. ' I have gone through the, entire case thoroughly and have come to conclusion that charges levelled against, Mr. Sajjad Hussain Bhatti, Ex-Assistant Treasurer, Karachi G.P.O. Are fully proved. He is responsible for embezzlement of Rs,17,23,000 from Karachi G.P.O. Treasury with the connivance of his other accomplices. I, therefore, order that the official deserves the major penalty of dismissal from Government Service. I, therefore, hold the orders of dismissal of the official with effect from 29-1-1993 in the case of embezzlement and violation of departmental rules. In order to recover the loss of the Government money, I also order that 1/3rd of the loss i,e, Rs,5,74,333 should be recovered from him. If he fails to deposit the loss within 30 days, it should be recovered through police as arrears of Land Revenue.
56. (Sd.)
57. CHIEF POSTMASTER, KARACHI G.P.O."
6. The appellant preferred a departmental appeal to the Deputy Post Master General on 24-8-1999, which does not appear to have been responded.
7. The appellant has filed this appeal with number of prayers mainly including (a) To hold impugned order dated 24-7-1999 as mala fide and passed against rules and regulations and without lawful authority and to set aside the same, (B) to order the payment of pension to the appellant being due with effect from 11-2-1990 alongwith back benefits and sanction of L.P.R., (c) all the pensionary benefits due to the appellant after his retirement as the same are final and have not been withdrawn. The respondents have filed their comments to the appeal duly submitted with the relevant documents.
8. We have heard the learned counsel for the appellant as well as the learned counsel for the respondents. We have also perused all the relevant documents enclosed with the memo. Of appeal as well as with the comments filed on behalf of the respondents. It has been contended on behalf of the appellant that the departmental enquiry conducted against him is not in accordance with the provisions of E&D Rules, 1973, that the entire enquiry has been held ex parte, that no witness has been examined against the appellant, that no chance of defence has been provided to the appellant and that no written explanation has been obtained from the appellant. On the other hand it has been argued on behalf of the respondents that the appellant is involved in serious case of embezzlement of an amount of Rs,17,23,000 that despite show-cause notice and charge-sheet the appellant failed to reply nor put up any defence, that the appellant was convicted by the Criminal Court and that the subsequent acquittal of the appellant by the Hon'ble High Court of Sindh at Karachi on account of benefit of doubt would not help. It has also been vehemently contended by the learned counsel for the respondent that the procedure to be adopted during the enquiry proceedings under E&D Rules, 1973 is different from the procedure adopted during the criminal trial meaning thereby that lesser quantity of prove and material is required for punishing the delinquent officer.
9. We have considered the arguments and gone through the relevant documents produced on behalf of both the parties. This departmental enquiry against the appellant has been ordered to be conducted under the provisions of E&D Rules, 1973 and this position is very much reflected from the charge-sheet dated 18-11-1989 as well as the statement of allegations. The very order of the appointment of Enquiry Officer dated 18-11-1989 shows that the enquiry against the appellant was ordered to be conducted under rule 6 of the Government Servants E&D Rules, 1973. Rule 6(ii) provides that the accused officer shall put in a written defence within 14 days of the charge-sheet and also express his desire to be heard in person.
58. ' Rule 6(iii) provides the examination of oral or documentary evidence by the Enquiry Officer in support of the charge or evidence of the accused and the accused shall be entitled to cross- examine the witnesses against him. At the same time, rule 6(v) provides a remedy in case the accused officer is hampering or attempting to hamper the progress of the enquiry. Rule 6(vi) stipulate that within 10 days of the conclusion of the proceedings, the Enquiry Officer will submit his report or finding to the authorized officer. The above narration of the provisions of Government Servants E&D Rules makes it mandatory that the Enquiry Officer shall provide every opportunity of defence to the accused officer. But surprisingly, in this case we find that the sununary/dismissal order dated 27-2-1993 is based upon the Court judgment dated 28-1-1993 whereby the appellant was convicted by the Special Judge Central-I, Karachi. But subsequently this judgment of conviction was set aside and the appellant was acquitted by the Hon'ble High Court of Sindh at Karachi vide judgment dated 9-9-1998. Thus, the ground taken in the dismissal order dated 27-2- 1993 for dismissal of the appellant from the Government service is no more in the field, thus the same cannot be considered as a valid order.
10. The F.I.R. Against the appellant and his other associates was registered by the FIA on 3-10-1989 while the charge-sheet was prepared and produced in the Court of Special Judge Central-I on the same date wherein the appellant has been shown to be in custody. But the Enquiry Officer or the respondent have suppressed this fact of the appellant being behind the bars if not earlier then at least with effect from 18-10-1989. It is not known when the appellant came out from the Jail, as the respondents as well as the Enquiry Officer have, nowhere indicated this fact. Thus, the plea of the appellant appears to be correct and we accept the same that the whole enquiry proceedings against him under E&D Rules, 1973 have been conducted ex parte in the absence of the appellant wherein no opportunity of defence has been given to the appellant.
11. The other main contention raised on behalf of the respondent is that the enquiry proceedings under E&D Rules, 1973 required lesser proof as compared to the criminal trial. This plea can only be accepted when the appellant had participated in the inquiry proceedings and the material contained in the charge-sheet and the statement of allegations should have been explained to the appellant and his reply or defence obtained. But in the instant case the situation is altogether different inasmuch as the appellant was in the jail custody when the departmental enquiry was being conducted against him. Even at the time of issuing the charge-sheet as well as the appointment of the Enquiry Officer the appellant was in jail as per contents of charge-sheet dated 18-10-1989 prepared by the FIA. The final dismissal order giving all the details of the charges against the appellant has been passed on 24-7-1999 whereby the appellant has been dismissed in the manner as mentioned in the concluding para. Of this order. This order of dismissal dated 24-7- 1999 mentions that it has been passed as a result of departmental case having been disposed of.
59. This shows that according to the respondents the final dismissal order was passed on 24-7-1999 while the enquiry proceedings were initiated as back as on 18-11-1989 when for the first time the charge-sheet was issued against the appellant. This further shows that right from 18-11-1989 till the passing of final dismissal order on 24-7-1999 it is not shown whether the appellant had ever been made a party or his presence procured during the departmental enquiry proceedings. The fact is that on 28-1-1993 when the appellant was convicted by the Special Judge Central-I, Karachi he was shown to be on bail but consequent to his conviction he was remanded to jail custody.
60. Likewise the judgment of acquittal dated 9-9-1998 delivered by the Hon'ble High Court, Sindh at Karachi mentioned the appellant to be on bail. It is also a fact that appellant continued to be free and available for most of this period when the departmental proceedings were being. Conducted against him. There is also nothing on the record nor brought to the notice of this Tribunal that the appellant had ever tried to hamper the enquiry proceedings. The final dismissal order dated 27-7- 1999 has only mentioned that the appellant failed to submit his defence within 10 days of the receipt of charge-sheet. But as already pointed out above, the appellant was said to be confined in custody while the charge-sheet was issued against him. It is further admitted in the final dismissal order that the Enquiry Officer proceeded ex parte and submitted his enquiry report dated 3-2-1990.
61. It is also admitted in the dismissal order that while the departmental action was yet to be taken when the appellant was convicted by the Trial Court and a summary decision was taken on 27-2- 1993. This further proves that the first dismissal order was issued when the appellant was convicted by the Court and this fact is mentioned in the summary dismissal order dated 27-2-1993.
12. We are further of loss to. Perceive that while the final dismissal order was passed on 24-7-1999 but the same was given effect retrospectively w,e,f, 29-1-1993. The awarding of punishment with retrospective effect is also against the very Rules, Regulations as well as against the norms of natural justice. It is also unlikely to be expected that the respondents who had ordered the grant of L.P.R. As well as sanctioned the retirement of the appellant from the Government Service vide order dated 3-9-1989 issued by Assistant Postmaster General (Staff) would order his dismissal on 27-3- 1993 as well as on 24-7-1999 of on employee under retirement. This shows that while the order of retirement of the appellant subsisted and was holding the field, all these proceedings in the shape of departmental enquiry, etc., were conducted atainst the appellant. This order dated 13-9-1989 in respect of retirement of the appellant on retiring pension w,e,f, 11-2-1990 has not been cancelled nor withdrawn by any authority. Thus, the order of the retirement of the appellant stands intact and holds the field till this day.
13. We have also been fortified on this point as well as other legal propositions by number of authorities produced by the learned counsel for the appellant: 1987 PLC (C.S.) 1109, 1993 PLC (C.S.)
62. 419, 1994 PLC (C.S.) 454, 1995 PLC (C.S.) 943 and 1996 PLC (C.S.) 817.
14. We are also confronted with unresolved procedural violation committed by the Enquiry Officer as well as by the authorized officer. It has been specifically mentioned in the charge-sheet dated 18-11-1989 that a formal enquiry as contemplated by rule 5(ii) of the Government Servants E&D Rules, 1973 is necessary and expedient. This rule provides as under: - "(ii) The authorized officer shall decide whether in the light of facts the case or the interests of justice an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. If he so decides, the procedure indicated in rule 6 shall apply".
63. ' This rule makes it mandatory for the Inquiry Officer of Inquiry Committee to conduct the Inquiry as indicated in rule 6 of the E&D Rules, 1973. Hence there was no alternative left with the Inquiry Officer but to conduct the inquiry strictly in accordance with the provisions contained in rule 6 (ibid). The procedure and the formalities in respect of Inquiry to be conducted under this rule have been discussed above. But the Inquiry Officer having failed to abide by the provisions of rule 6 (ibid), has violated the mandatory provisions by conducting the inquiry in ex parte manner and denying any opportunity of defence to the appellant despite the fact that the charge-sheet was issued against the appellant on 18-11-1989 while the final dismissal order was passed as late as on 24-7-1999. The respondents have failed to produce any record or proof that except forwarding a notice on one or two occasions they did not take any other measure to procure the attendance of the appellant before the Inquiry Officer right from 1989 till 1999. It may also be mentioned here that according to rule 7(a) of the E&D Rules, 1973 the Inquiry Officer shall have the power of a Civil Court trying a suit under the Code of Civil Procedure, 1908 in respect of the following matters:
(a) summoning and enforcing the attendance of any person and examining him on oath.
64. ' Under sub-rule (ii) of rule 7, the procedure under the E&D Rules, 1973 is deemed to be judicial proceedings within the meaning of sections 193 and 228 of P.P.C. The provisions of Civil Procedure Code do provide for substituted service in case the ordinary procedure of service is not effective, We have not been informed by the respondent nor any such document made available that in case of alleged refusal on the part of the appellant to receive notice, the procedure for substituted service was adopted particularly when a period of nearly 9 years passed between the issuing of the charge-sheet and the passing of the final dismissal order. The respondent could have published a notice for securing the attendance of the appellant in Daily Newspapers in order to make his presence guaranteed during inquiry proceedings.
15. The perusal of the charge-sheet dated 18-11-1989 as well as the contents of the Inquiry report and also the contents of final dismissal order dated 27-7-1999 show that the authorized officer as well as the competent Authority have laid much stress upon the investigation conducted by the team of 5 officers in respect of the embezzlement. If it was so then the respondents had no reason to allow the application of the appellant for retirement as well as for grant of L.P.R.Vide order dated 3-9-1989. It will be pertinent to note that this investigation through a team, of officers was conducted before the formulation and issuing of the charge-sheet against the appellant on 18-11- 1989. On the other hand the charge-sheet dated 18-11-1989 stipulate that a formal enquiry as contemplated by rule 5(ii) of the E&D Rules, 1973 was necessary and expedient. It became, therefore, mandatory for the respondents to conduct this enquiry in accordance with the provisions of rule 6 of the E&D Rules, but we find that the so-called enquiry under E&D Rules, 1973 has been conducted ex parte and except the report of the enquiry team which investigated the matter prior to the holding of enquiry under E&D Rules, 1973, was relied upon by the Inquiry Officer in his inquiry report and also by the competent authority vide issuing the final dismissal order against the appellant. The report of the investigations conducted by this team has not surfaced at all before this Tribunal and on the other hand no evidence collected, nor any witness examined or any material has been adduced during the course of so-called enquiry under the provisions of E&D Rules, 1973.. Since the respondents contemplated the action against the appellant in accordance with the provisions of E&D Rules hence they could not make the investigations by the team conducted prior to the initiation of the enquiry, as a ground and basis for inflicting punishment of dismissal upon the appellant. The respondents could not be allowed to blow hot and cold at the same time. It is cardinal principle of legal jurisprudence that if a particular act is deemed to be done in a particular manner, the same shall be done in such manner and not by any other manner or procedure. Hence the respondents, who initiated and ordered the enquiry against the appellant under the provisions of E&D Rules, 1973, then they cannot be allowed to adopt any other method or source to punish the appellant. Such act on the part of the respondents is mala fide and discriminatory.
16. In view of the above discussion and for the reasons and circumstances explained above we are of the considered opinion that the departmental proceedings, if any, ordered and conducted against the appellant are not, .At all, in accordance with the Government Servants E&D Rules, 1973.
65. We are also firm in our view that the appellant has not been given any opportunity of defence and the impugned dismissal order has admittedly been passed ex parte and without obtaining any defence from the appellant. Hence, we allow this appeal and set aside the impugned order of dismissal dated 27-2-1993 as well as the final dismissal order dated 27-7-1999. We also hold that the order of retirement of the appellant and grant of L.P.R. To him dated 3-9-1989 is intact and the respondents are directed to act upon this order in accordance with the relevant rules and regulations in respect of the retiring pension allowed to the appellant with effect from 11-2-1990.
66. Since the appellant stands retired w,e,f, 11-2-1990 hence there is no need to pass any order for the period having lapsed thereafter.
17. No order as to costs. Parties be informed accordingly by registered post.