JUDGMENT AKBAR M. MEMON, MEMBER.- The appellant hereinabove has challenged the order dated 8.12.2000 passed by the respondents, whereby the respondents after finding him guilty of the charge of misconduct awarded major penalty of removal from service under Rule 4(b)(i.e) of the E&D Rules. The order in question is reproduced hereunder:- "Consequent upon action taken against Mr. Boota Masih, Charge Nurse (under suspension), of this Institute under Government Servants (Efficiency and Discipline) Rules, 1973, and after having found him guilty of Charge of "MISCONDUCT" the competent authority has imposed upon him Major Penalty of REMOVAL FROM GOVERNMENT SERVICE under Rule 4(b)(i.e) of the said rule ibid. His name has been struck of from the strength of National Institute of Child Health, Karachi with immediate effect.
His dues, if any, will be paid to him on the production of NO DEMAND CERTIFICATE.
Sd/- (PROF. ZEENAT ISANI)
DIRECTOR"
2. Mr. Sanaullah Noor Ghori learned counsel for the appellant has contended that the appellant was selected as charge Nurse on 30.10.1990 and after working for about 10 years h^ was placed under suspension on 13.11.2000 whereafter he was charge-sheeted followed by Statement of Allegations, which reply was given by him. He has contended that subsequently Enquiry Officer was appointed but in the meantime he was being pressurized by the Lady Doctor, as such, he filed complaint against her and moved the SHO Police Station concerned for lodging the FIR. On 8.12.2000 the impugned order was passed whereby he was removed from service without holding proper enquiry as the Enquiry Officer examined the witnesses behind the back of the appellant meaning thereby that no chance was afforded to the appellant to cross-examine them. He has contended that this fact has been admitted by the respondents in their comments at para 7. At the same time he has contended that the enquiry on the fact of it is defective as neither the report of the enquiry was supplied to him nor the appellant was called for personal hearing. He has lastly contended that since the enquiry itself was defective in nature, no punishment could have been imposed upon the appellant, as such, it is a fit case where appellant be reinstated with all back benefits, In support of his contentions, he has placed reliance on 1993 SCMR 1440, 1996 PLC (C.S.)
868, 1993 PLC (C.S.) 643, 1997 TD (Service) 247, 2001 SC] 740, 1985 PLC (C.S.) 518, 2003 PLC (C.S.) 7, 1987 SCMR 1562, 1992-PLC (C.S.) 678, 1992 PLC (C.S.) 490, 1986 PLC (C.S.) 419, PL] 2002 SC 1059.
3. Mr. Niaz Ahmed Khan, Standing Counsel while supporting the impugned order has contended that the appellant was guilty of misbehaviour, misconduct and was unwilling worker being absentee. He has contended that the appellant had the habit of disobeying the lawful orders of the seniors for which he was given repeated show-cause notice and was asked to improve His conduct as is evident from para 3 of the comments. He has contended that the act of removal is based on the Charge-Sheet. At the same time he has contended that in the enquiry the appellant was associated and if he had any objection in the enquiry he should have raised such an objection at the time of holding enquiry. He has further contended that 08 witnesses were examined by the Enquiry Officer in presence of the appellant and the appellant was given full chance to defend himself. He has contended that personal hearing is always given by the Authorized Officer as is evident from PLD 1967 Supreme Court page 62 and the case-law cited by the learned counsel for the appellant has no relevancy with the facts of the case. At this stage attention of learned counsel for the respondents was drawn to para 07 of the Parawise Comments which reads as under:- "Para No. 8: Enquiry was conducted by a senior member of the faculty, It is agreed that his (Boota Masih) statement was recorded by the enquiry officer, so also were statement recorded from the 2 doctors and 8 other witnesses, In an enquiry individual statements are recorded and enquiry is not conducted in any one's presence, so how can the appellant be present during enquiry?"
4. After going through the said paragraph and after consulting departmental representative, Mr. Niaz Ahmed Khan, Standing Counsel. Has agreed that there is defect in the enquiry as 08 witnesses were examined behind the back of the appellant meaning thereby that he was not afforded of chance by the Enquiry Officer to cross-examine those 08 witnesses alongwith two others Doctors.
5. Without touching the merits of the appeal further, we are of the view that there is patent defect in the enquiry as there was total failure on the part of the Enquiry Officer to afford full chance to appellant to cross-examine the witnesses meaning thereby that the Enquiry Officer has violated the principles of natural justice which require affording of full chance to such an incumbent to cross-examine the witnesses and to put up his defence, In such state of affairs, we, while allowing the appeal in hand set aside the impugned order dated 8.12.2000 and remand the case to the respondents with directed to reinstate the appellant on the same position from which he was removed from service and to hold fresh enquiry within for months from today. The question of back benefits would depend on the report of the enquiry, In case enquiry is not conducted and completed within for months from date of judgment, the appellant would be entitled to ail back benefits.
6. These are the reasons of our short order which was passed on the Order Sheet on 26.2.2Q03.
7. There will be no order as to costs.