' FAKHRUDDIN H. SHAIKH (CHAIRMAN).-This is an appeal from the order dated 10th May, 1977 of the respondent whereby the appellant was compulsorily retired from service under rule 5(4)(b) of the Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1974. The facts of the case as stated by the appellant in his appeal are as under :-
2. On 17-2-1977 he was posted as Assistant Commissioner, Gowadar when a charge-sheet was served upon him to the effect that certain Indian Nationals were released by him in flagrant violation of the directive of the Provincial Government and as such he was guilty of gross misconduct. Enquiry Officer (Mr. Fateh Khan Khajjak, Commissioner, Mekran) was appointed to investigate into the above allegation. The appellant submitted his explanation before the Inquiry officer in which he denied that any instruction was received by him regarding detention of the Indian Nationals. It may be stated that these Indian Nationals were convicted by the appellant under the provisions of Pakistan Control of Entry Act, 1952. In the judgment of conviction the appellant also mentioned that they should be sent across the border. It was not specified as to which authority was to comply with this direction. The result was that the convicts, whose period of detention as under trial prisoners, was counted towards imprisonment for non-payment of fine as a result of the conviction, were released on the same day when they were convicted i. e. On 17th August, 1976. Thereafter these Indian Nationals disappeared and their whereabouts are not known.
3. Earlier the Provincial Government had given a direction to the Commissioner to transfer these Indian Nationals to Central Jail, Mach. On 14-7-1976, the Commissioner passed on this information to Deputy Commissioner, Mekran. The latter had received the Commissioner's letter on 24-7-1976 but he did not contact the Assistant Commissioner, Gowada (appellant) in this behalf. It was contended by the appellant before the Inquiry Officer that no such instructions regarding further detention of the Indian Nationals were received by him. The Inquiry Officer accepted this contention, but was of the opinion that the appellant did not possess sound knowledge of law. He was clearly of the view that the instructions of the Provincial Government were not passed on to the appellant and the latter can at the most be said to have been negligent in passing an illegal order due to his poor knowledge of law. Such report was submitted by the Inquiry Officer to the respondent, who passed the impugned order on the ground that the appellant was guilty of misconduct.
4. The appellant has contended that he was not found guilty of misconduct by the Inquiry Officer, and as such the order of the respondent is illegal. He has also attacked the impartiality of the Inquiry Officer.
5. Notice was issued to the respondent who has filed objections to the appeal. It has been alleged that the appellant had acted in violation of section 7 of the Pakistan Control of Entry Act, 1952 inasmuch as he failed to specify in the order of conviction as to which authority was to implement the direction regarding putting the Indian Nationals across the border. The respondent has further relied upon some portions of the report of the Inquiry Officer in which it has been held that the appellant possessed poor knowledge of law and that his order was patently illegal. It has not been asserted that the directions of the Provincial Government in this behalf were actually communicated to the appellant by Deputy Commissioner, Mekran, But it has been alleged that irrespective of this, it was the duty of the appellant to have complied with section 7 of the Act, 1952.
It is therefore pleaded that the order of compulsory retirement in respect of the appellant was quite legal.
6. The main question that falls for determination in this case is whether it was open to the Authority to have punished the appellant on a charge about which there is clear finding of the Inquiry Officer that it has not been proved. The relevant part of the statement of allegations may be reproduced here. It is as under :- "That the manner in which Mir Qadir Bux Nautherwani acted in releasing the said Indian Deems in flagrant violation of directives of the Provincial Government amounts to gross misconduct within the meanings of sub-rule (4) of rule 2 of the Baluchistan Civil Servants (Efficiency and Discipline)
Rules, 1974."
7. Thus the only allegation against him was that he had disregarded the directive as to further detention of the Indian detenus. The finding of the Inquiry Officer on this allegation may also be reproduced here with advantage :- "The matter of the landing and arrest of the Indian Nationals was brought to the notice of the Provincial Government and direction was given by the Provincial Government that these Indian Nationals should be transferred to Central Jail, Mach so that they could be extradited. The Commissioner, Kalat Division vide his Secret Letter Nos. 2589-91/146-SB, dated 14-7-1976 passed on these instructions to the Deputy Commissioner, Mekran expressly stating that the Indian Nationals lodged in judicial lock-up at Turbat be shifted the Central Jail, Mach under the proper escort immediately. The letter was received by the Deputy Commissioner, Mekran on 24-74976 and was dealt with on a Note-Portion of the File No, iii of Judicial Branch in District Office Mekran captioned as "Correspondence" Regarding Under-Trial Prisoners". The Deputy Commissioner, Mekran directed that these Indian Nationals should be sent to Central Jail, Mach after their cases were decided. This order was passed by the Deputy Commissioner, Mekran on the file on 3rd August 1976. However no specific instructions were sent to the 'accused official' to send the prisoners to Central Jail Mach after the decision of the case in pursuance of Commissioner, Kalat Division Secret letter dated 14- 7-1976."
(Underlining is mine)
8. From the above it will be clear that no direction of the Provincial Government in this behalf was communicated to the appellant by the Deputy Commissioner concerned by the Government.
Hence it cannot be said that he was guilty of misconduct for acting in "flagrant violation of the directives of the Provincial Government".
9. The fact that the directive of the Provincial Government in thief behalf was not communicated by the Deputy Commissioner or the Commissioner or any other authority to the appellant, has not been denied by the respondent either in this written objection. But it has been pleaded that in spite of this the appellant should not have released the detonus but should have acted as provided by section 7 of the Act of 1958. Section 7 of this Act says as under :- "7.-(1) The Central Government may order any person who is not a citizen of Pakistan convicted under section 4 or section 5 to remove himself from Pakistan within the time specified in the order
(2) If such person refuses or fails to remove himself ;
(a) he shall be punished with imprisonment which may extend to one year or with a fine which may extend to one thousand rupees or with both, and (b) he may be removed from Pakistan under the Central Government who may use all such means as may, in the circumstances, be necessary to effect the removal.
(3) The Central Government may by a general or special order, direct that the power to make orders under subsection (1) and clause (b) of subsection (2) shall be exerciseable also by a Provincial Government, or the Government of an Acceding State, subject to such conditions, if any, as may be specified in the direction."
10. There is nothing in the above section to indicate that it is the duty of the Magistrate trying an offender under the above Act, to see that the offender was deported from the country after conviction. The Magistrate can do no more than to make an order for deportation which was done by the appellant in the present case. The only lapse on his part was that he did not specify the authority who was to carry out the order. But this lapse cannot be termed as misconduct. The Inquiry Officer has rightly pointed out that this was due to poor know ledge of law on the part of the appellant. Thus it can be said that the appellant was inefficient. But he was not charge-sheeted for inefficiency, nor was he called upon to show cause against any such allegation. He can be punished only for that charge for which he was charge-sheeted and which had been proved against him. He was charge-sheeted for misconduct, and as the charge has not been proved, he cannot be punished for it.
11. For the above reasons the impugned order regarding his compulsory retirement cannot be upheld. Consequently the appeal is allowed, the impugned order is set aside and it is directed that the appellant shall be treated to be in service as from 10th May, 1977 until he is removed in due course of law.
[Here in italics]