' QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER).---Being aggrieved by and dissatisfied with the office order dated 17-3-2001, issued by the Respondent No,5 whereby the Appellant was removed from service with immediate effect under clause (iii) of sub-rule (2) of P.C.C.C. (Staff Service) Rules, 1972, the Appellant preferred the appeal to this Tribunal on 13-8-2001, with a prayer to setaside the impugned order and order his reinstatement in service with all back-benefits.
2. The disciplinary proceedings against the Appellant commenced with the following show-cause notice:-- "No, P.C.C. Pub-145/99, 5455 Dated: 26-12-2000 Subject: SHOW-CAUSE NOTICE ' It has been observed from this office record:--
(i) That you have been involved in business with certain bogus/on paper firms in the field of supply of Chemicals, Stationery items and publication of P.C.C.C. Journals.
(ii) That last time in September, 1999 under the name of M/s. Skim-Enterprises you have submitted quotation for printing Sindhi version article.
(iii) That the work assigned on 7-10-1999 for completion within 25 days was done considerably months late and the printing was also done substandard.
(iv) That the pages of the pamphlets were unnecessarily increased by giving extra spaces in the sentences and leaving blank spaces just to heap up your bill over and above the quoted rates and estimates of the P.C.C.C. On its actual volume of the work.
(v) That in certain assignments you at some level had collected the information about the rates quoted by other firms through some body just to put your quotations as had been done in case of "Printing of Cash Books" as well as in case of "The Pakistan Cotton" volumes 42 (Nos.3 and 4) and 43 (Nos.1 and 2).
(vi) That M/s. Tornado Corporation and M/s. Wadood have already been blacklisted by P.C.C.C. And non-existence of Ms/ Skim Enterprises has also been established on an inquiry conducted by P.C.C.C.
(vii) That the entire business on the name of above said firms done by involving your official contracts with P.C.C.C. Officials and influence stand false/fraud on your part: Total amount is being calculated for further procedure of its recovery. Your involvement in business within office and adopting unfair means for getting the assignments is an act, which is liable to be dealt with severely under the P.C.C.C. Staff Service Rules. You are directed to clearly indicate the names of all the officials cooperated with you in all the matter which make you successful in getting certain official order for printing and supply etc. Iti P.C.C.C. Headquarters and Pakistan Institute of Cotton Research and Technology, Karachi within one week's time and Show Cause be replied categorily as to why a major penalty is not imposed upon you under P.C.C.C. Staff Service Rules 1972.
(Sd.)
(Aijaz Ahmed Memon) Secretary, P.C.C.C."
3. In his reply to the show-cause notice addressed to Mr. Aijaz A. Memon, Secretary, P.C.C.C., Karachi, the Appellant stated that the show-cause notice issued to him was irrelevant, mala fide and inimical. He pointed out that he had since been working under the Director of P.I.C.R and T., the latter only had the power to issue him such a letter (show-cause notice). The Secretary P.C.C.C., (Respondent No,4) then issued a final show-cause notice dated 9-1-2001 to the Appellant containing some more allegations against the Appellant. The Appellant replied the final show- cause notice vide his reply dated 15-1-2001, interalia, denying the allegations of inefficiency and misconduct. This was followed by another show-cause notice dated 25-1-2001 issued by the Secretary, P.C.C.C. (Respondent No,4) wherein decision of the competent authority to impose major penalty of removal from service upon the Appellant under Respondent's Staff Service Rules 1972 was conveyed to him and he was informed to appear before the competent authority. If he so wished, for personal hearing to clarify anything within a week's time, if he so wished, failing which, he was warned, the decision of his dismissal will become effective immediately.
4. In reply to the above-mentioned show-cause notice, the Appellant made a written complaint dated 27-1-2001 to the Vice-President, P.C.C.C. (Respondent No,3) against the Secretary, P.C.C.C., (Respondent No,4) Then, vide office order dated 13-2-2001, issued by the Respondent No,5, the Appellant was reverted to BPS-17 and transferred to Physiology Chemistry Section of C.C.R.I., Sakrand and relieved with immediate effect . On such action against him, the Appellant again addressed a letter dated 15-2-2001 to Mr. Aijaz Ahmed Memon (Respondent No,4) alleging the action against him being result of vindictive mentality and personal vendetta of the Respondent No,4 He pointed out that there was no Physiology Section at Sakrand where he could be transferred and he also expressed 'fear to his life' in the C.C.R.I. Sakrand. Again a final show-cause notice dated 3-2-2001 (with the approval of the competent authority) was issued to the Appellant by the Respondent No,5 warning him for his absence from duty at Sakrand for which he could be declared absconder and his service would be terminated. This show-cause notice was also replied to by the Appellant in terms of his letter to the Respondent No,5 dated 15-1-2001. Finally, vide impugned order dated 17-3-2001, he was removed from service of the P.C.C.C. Against his removal from service, he filed a departmental appeal dated 14-4-2001 before the Respondent No,2. It appears that the Appellant did not receive any order about his appeal within the stipulated period of 90 days; hence, he filed this appeal.
5. In the para-wise comments, it was maintained that on the basis of the investigation/inquiry by a Fact Finding Committee, the show-cause notice dated 26-12-2000 was issued to the Appellant and after holding inquiry against him and providing him an opportunity for personal hearing, action against the Appellant was taken by the Respondents in accordance with the P.C.C.C. (Staff Service)
Rules, 1972.
6. We have heard the learned counsel for the parties and perused the record and the authorities cited at the bar.
1. The learned counsel for the appellant argued that the disciplinary proceedings against the Appellant were ab initio null and void for the reasons, firstly., that the show-cause notices had to be issued by the Competent Authority, but the same were issued by the Secretary, P.C.C.C., who was not competent to do so; secondly, that the proceedings against the Appellant had been drawn under the P.C.C.C. (Staff Service) Rules, 1972 which had already been overridden by Removal from Service (Special Powers) Ordinance, 2000. As such, the learned counsel stated that no proceedings could be initiated against the Appellant under the said Rules, as the said Ordinance of 2000 was already in the field on 27-5-2000. The learned counsel for the appellant further argued that the major penalty of removal from service could not have been inflicted upon the Appellant without resorting to a fullfledged inquiry against him providing him the opportunity to cross examine the witnesses and lead his defence, that the Secretary of P.C.C.C. (Respondent No,4), who was hostile and inimical to the Appellant, had acted as the authority as well as prosecutor thereby gross illegality was committed in the proceedings against the appellant; that the Deputy Secretary of P.C.C.C. (Respondent No,5) was also not competent to issue any show-cause notice or order of reversion and removal of the Appellant from service; that before awarding the major penalty of removal from service the appellant was not afforded an opportunity of personal hearing and thereby he was condemned unheard; that for all these reasons, the impugned order and the earlier order of reversion of the Appellant were liable to be set-aside and the appellant was entitled to be reinstated in service with all back-benefits. The learned counsel for the Appellant in support of his contentions cited authorities reported in PLD 1964 SC 68, 1997 SCMR 1543, PLD 1967 Lahore 1112 and 1997 SCMR 1552.
8. The learned counsel for the Respondents contended that the Respondents 4 and 5 had issued the show-cause notices and orders in question with the approval of Competent Authority as in consequence of the report of the Fact Finding Inquiry, the Vice-President of the P.C.C.C.
(Respondent No,3), who was the Competent Authority, had approved to initiate disciplinary action against the Appellant by issuing show-cause notice to him; that the disciplinary proceedings had rightly been conducted against the Appellant under Service Rules of the Respondents; that in, view of the detailed inquiry by the Fact Finding Inquiry which probed allegations against the Appellant there was no need of any further inquiry against the Appellant; that the Appellant was provided an opportunity of personal hearing before the Competent Authority i,e, the Vice-President, P.C.C.C., but he failed to clarify/explain his position and insisted that irrelevant reply/application be processed; that for these reasons the Appellant was not entitled to any relief as he was rightly penalized by the Respondents.
9. We have carefully considered the above arguments of the learned counsel for the parties. A perusal of the record shows that no reference of any Fact Finding Inquiry/Investigation was mentioned in the first and second show-cause notices dated 26-12-2000 and 9-1-2001. It was also not mentioned therein that the show-cause notices were issued after obtaining the orders of the Competent Authority. As a matter of fact there is absolutely no reference of the Competent Authority in these notices. The issuance of show-cause notices were also not in accordance with rule 69 of the P.C.C.0 Staff Service Rules, as under the said Rules, after applying his own mind on the facts of the case, the Competent Authority was required to take decision whether it was a case of major penalty and if so he was required to appoint an Inquiry Officer for holding inquiry into the allegations against the Appellant or for cogent reason he was required to dispense with the inquiry and proceed against the Appellant on the basis of the show-cause notice, but that was not done. It appears that the Secretary himself was the Master of the show cause acting as Authority as well as the Authorized Office for which there was no provisions in the said Rules. On page-10 of the proceedings of the so called. Fact Finding Inquiry/Investigation held by the Director, P.C.C.C., there is a note of the Secretary, P.C.C.C. (Respondent No,4), relevant portion of such note is reproduced hereunder:- "21(5) responsibility can not be fixed on a particular official as it is not done intentionally.
21 (6) Agreed and seems to be procedural error.
31. In view of the observations it is suggested that payments may be made as in para 16-A after deducting the income tax as admissible under rules.
32. As recommended by D.R.
V.P. P.C.C.0 (Sd.)-4/7 Secy P.C.C.C."
10. Apparently the matter should have come to an end after the approval of the above note by the Competent Authority i,e, the Vice-President, P.C.C.C. (Respondent No,2). However, the proceedings were further carried on but the name of Appellant did not transpire anywhere in the proceedings up to the page 42 thereof as one responsible for the fraud or financial bunglings in respect of M/s. Skim Enterprises, but on page 43 under paras. 57 to 59 all of a sudden Appellant Ahmed Kamal was held responsible for the alleged fraudulent acts on the basis of a vague statement of LDC M. Aslam Khan and approval for issuance of show-cause notice to Appellant Ahmed Kamal was obtained from Respondent No,2 on 4-12-2000. It may be pointed out here that the alleged statement of LDC M. Aslam Khan was recorded in July, 2000 (exact date not mentioned) about the time of the note of the Secretary at page-10 of the proceedings, mentioned above. This speaks adversely against Respondent No,4 who, apparently, had acrimonious/embittered relations with Appellant Ahmed Kamal in connection with a lady seen with Appellant Ahmed Kamal in his office, as is evident from the fact-finding proceedings.
11. As to the illegality of the proceedings against the Appellant under P.C.C.C. Staff Service Rules, the learned counsel for the Appellant had rightly pointed out that after promulgation of the Removal from Service (Special Powers) Ordinance, 2000, no disciplinary proceedings could have been initiated against the Appellant under the Service Rules, of the Respondents, as the said Ordinance of 2000 has overriding effect all other laws. Section 11 thereof is reproduced as tinder:-- "11. Ordinance to override other laws.---The provisions of this Ordinance shall have effect notwithstanding anything to the contrary contained in the Civil Servants Act, 1973 (LXX of 1973), and the rules made thereunder and any other law for time being in force."
' The respondent had thus initiated the proceedings against the Appellant by misapplication of law.
The learned counsel for the Appellant has cited the judgment of this Tribunal in case of Syed Jawed Hussain Zaidi v. The Chief Executive, HESCO (WAPDA), Hyderabad and 2 others in Appeal No,361(R)(CS)/2003 dated 30-9-2003 authored by the Hon'ble Chairman where on the basis of such misapplication of law, the order of dismissal against the Appellant in that case was set aside and the said Appellant was ordered to be reinstated in service:
12. Coming to the inquiry against the Appellant, we are clear in our mind that the so-called Fact Finding Inquiry/Investigation referred to by the Respondents in their comments cannot be equated with a regular inquiry as envisaged under their own Service Rules, for the reasons that the Appellant was not associated in the said inquiry in any way and he was not even supplied the copy of the said Investigation/Inquiry proceedings. Such inquiry proceedings did not have any evidentiary value. It is settled law that in case of major -penalty proposal to be imposed on an accused civil servant for serious allegations which are denied by the employee, regular inquiry is mandatory providing such employee an opportunity of cross-examining the witnesses against him as also allowing him to put 'up his defence. It is obvious that the Respondents had not done so and major penalty was imposed on the Appellant twice, without holding any regular inquiry into the allegations levelled against him.
13. So far as the personal hearing is concerned, record shows that an opportunity was given to the Appellant for personal hearing before inflicting the punishment of reversion, but no such opportunity was given to him before passing an order of major penalty of removal from service against the Appellant. By not holding a regular inquiry and not providing an opportunity to the Appellant of personal hearing in connection with major penalty of removal from service the Respondents violated the principles of natural justice.
Reliance is placed on 2004 SCMR 294, 2003 PLC (C.S.) 353 (Supreme Court) 2000 SCMR 53.
14. For all the reasons, mentioned above, we find ourselves in agreement with the learned counsel for the Appellant that the proceedings against the Appellant suffer from material discrepancies and infirmities has rendering the charges against the Appellant not sustainable in law. We, therefore, accepted the appeal of the Appellant, set aside the impugned order dated 17-3-2001 as also the order of reversion dated 13-2-2001 and reinstate the Appellant in service from the date of his dismissal from service with all back-benefits for the period he was not gainfully employed elsewhere in the intervening period, for which he shall file an affidavit before the Competent Authority viz: Respedent No,2. The Respondents shall be at liberty to initiate any disciplinary proceedings against the Appellant within four months, if they so wish.
15. No order as to costs. Copies of Judgment be sent to the parties under registered cover under rule 21 of Service Tribunal (Procedure) Rules, 1974.