1. ' JUSTICE AMANULLAH KHAN (CHAIRMAN)---This appeal under section 4 of Balochistan Service Tribunal Act, 1974, is directed against the notification dated 8-5-2000, passed by Secretary, Health Department, Government of Balochistan, whereby the appellant was removed from service.
2. ' Facts giving rise to this appeal are that the appellant was serving as Chief Planning Officer (BPS- 18) and during his service, he applied for three years extraordinary leave without pay w.e. From 1-9- 1997 to 31-8-2000. However, the same was allowed by the then Secretary, Health Department, Government of Balochistan vide notification dated 24-2-1998.
3. ' Before availing the said leave, appellant wrote a letter to Japanese Company JICA, wherein he recommended to the said firm for availing the services of any of the following NGO's:-- ' M/s. HeSMaG, Balochistan, Quetta.
4. ' M/s. Friends and Company, Balochistan, Quetta. M/s. Ibrahim and Company, Balochistan, Quetta.
5. ' The appellant was charge-sheeted by the authorized Officer on 20-3-1998, for soliciting business from Japan International Corporation Agency (JICA) on behalf of the aforementioned firms. The statement of allegations was also attached with the charge-sheet and Mr. Hafiz-urRehman, former Secetary Labour Department, Government of Balochistan, was appointed as Enquiry Officer. The charge sheet and statement of allegations reads as follows:-- "No, S-III (E)/98-S&GAD ' GOVERNMENT OF BALOCHISTAN HEALTH DEPARTMENT.
6. ' Dated Quetta the 21st March, 1998.
7. ' CHARGE-SHEET.
8. ' Whereas the 'Authorized Officer' in your case in terms of rule 2 of Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992, is of the opinion that sufficient grounds exist to proceed against you in terms of rule 3 (c) thereof: and
2. Whereas I, Syed Shahid Hussain, Chief Secretary Balochistan, as Authorized Officer in your case, have decided to proceed against you under rule 6 of the Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992; and
3. Whereas I, consider that in the light of the facts of the case and in the interest of justice, it is necessary to hold an enquiry through an Enquiry Officer; and
4. Now therefore, you Dr. Akhtar Hameed Khan presently on leave are hereby charged as under:-- ' That you while posted as Chief Planning Officer Health Department solicited business from JICA on behalf of HeSMaG Balochistan a firm of which:
(i) You are Coordinator and your wife Samina Sultan is a partner together with Mrs. Ruqayya Hashmi wife of Mr. Saeed Ahmed Hashmi, M.P.A.
(ii) You recommended the other firm to JICA i,e, M/s. Friends and Company Balochistan which is located in the same building as HeSMaG of which your wife Samina Sultan is Managing Director; and
(iii) You recommended the third firm to JICA viz M/s. Ibrahim and Company Balochistan which does not exist except on paper.
5. By reasons of the above you appear to be guilty of misconduct within the meaning of Rules 2(i) and 3 (c) of the Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992, for the said commission on your part.
6. And whereas, by reason of the above read with details given in the enclosed statement of allegations, you are liable to disciplinary action under rule 3 of the Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992, which may involve imposition of the penalty of dismissal from service prescribed under rule 4 of the said Rules.
7. Now therefore, you are hereby required to submit your written defence to the above charges within fourteen (14) days of the receipt of this charge sheet, explaining as to why disciplinary action, as aforesaid, should not be taken against you; and stating at the same time, whether you also desire to be heard in person.
8. Please take notice that your written defence should reach within the aforesaid period direct to Mr. Hafeezur Rehman, Secy. Labour, who has been appointed as Inquiry Officer, failing.Which it shall be presumed that either you have no defence to offer or you have declined to offer the same and accept the charges and in that case action shall be taken ex parte."
9. ' GOVERNMENT OF BALOCHISTAN HEALTH DEPARTMENT.
10. ' STATEMENT OF ALLEGATIONS.
11. ' Dr. Akhtar Hameed Khan, formerly Chief Planning Officer, Government of Balochistan, Health Department presently on leave is accused of misconduct arising out of the following acts of omission and commission.
12. ' That while posted as Chief Planning Officer in the, Health Department:--
(i) he was Coordinator and his wife Samina Sultan is a partner together with Mrs. Ruqayya Hashmi wife of Mr. Saeed Ahmed Hashmi, M.P.A;
(ii) he recommended the other firm to JICA i,e, M/s. Friends and Company Balochistan which is located in the same building as HeSMaG of which his wife Samina Sultan is Managing Director; and
(iii) he recommended the third firm to JICA viz M/s. Ibrahim and Company Balochistan which does not exist except on paper.
13. (Syed Shahid Hussain) Chief Secretary, Authorized Officer."
14. ' The appellant submitted his reply and on completion of enquiry, the Enquiry Officer vide letter dated 13-1-1999, recommended that the enquiry proceedings against the appellant be dropped, as the charges levelled against him could not be established. Being dissatisfied with the recommendations; Syed Muhammad Saleem Chishti, the then Officer Government of Balochistan Haj Auqaf and Women Development and Social Welfare Department, was appointed as Enquiry Officer, who also after hearing the appellant recommended that the appellant be exonerated from the charges vide report dated 7-9-1999. Thus on 6-10-1999, departmental proceedings were dropped against the appellant by the Authorized Officer.
15. ' The appellant received a show-cause notice in respect of the same charges on 1-4-2000. It may be mentioned here that vide notification dated 2-11-2000, the then Chief Secretary/Authorized Officer, Government of Balochistan, withdrew the order exonerating the appellant from the said charges on the ground that the same were ab initio, mill and void passed by incompetent authority. Thus the show-cause notice was issued on 25-11-2000 to the appellant and the appellant filed his reply to the same and thereafter, leave without pay granted for three years was also withdrawn and he was directed to report to the. Health Department. After receiving reply to the show-cause notice, a summary was moved to the Governor Balochistan by the then Secretary Health, Government of Balochistan and thereafter, the appellant was removed from services vide impugned notification dated 8-5-2000. A review application was filed before the Governor Balochistan, but no order was passed on the same; hence the instant appeal was filed.
16. ' It may be pointed out here that on the same allegations, a case was registered against the appellant with Anti-Corruption Police Station, Balochistan Quetta, under sections 409, 420, 467, 471, 477-A, 109 read with section 5(2) Act-II of 1947. Regarding the same allegations, challan was submitted against the appellant before Special Judge, Anti Corruption Balochistan, Quetta, who vide order 'dated 4-1-2002, acquitted the appellant from th&charge.
17. ' Mr. H. Shakil Ahmed, learned counsel for the appellant contended that the allegations levelled against the appellant were that he - had recommended to JICA Companies to deal with the NGO'S working in Balochistan Quetta. The allegation against him was that his wife Samina Sultan was a partner in one of the Firm and further in the second Firm, his wife was Managing Director. Learned counsel pointed out that even if the appellant wrote a letter to the Japanese firm (JICA) for, consultation with three firms, in which the appellant's wife was a member would not constitute any offence under the E&D, Rules and further stated that it was only a recommendation made by the appellant to the Japanese Firm to dad with the three firms mentioned herein above. Further, no action was taken by the Japanese Firm on the basis of the said letter and no monetary loss was caused to the Government. Learned counsel argued that after holding two enquiries, the appellant was. Exonerated from charges and in this respect, a notification dated 6-10-1999 was issued by the Chief Secretary/Authorized Officer who dropped the proceedings against the appellant and exonerated him from the charges levelled against him. Surprisingly, the said notification was withdrawn on the ground that it had been issued by an incompetent Officer, but no such reason has been given by them. Learned counsel further stated that the facts were misstated in the summary submitted before the Governor Balochistan and the order impugned was passed without hearing the appellant and without taking into consideration the earlier recommendations for dropping the enquiry against the appellant by second Enquiry Officer.
18. ' Mr. Ghulam Mustafa Mengal, learned Additional Advocate General, however vehemently opposed the appeal and relied upon the parawise comments filed by Government of Balochistan. Learned Additional Advocate-General had contended that the first two enquiries were incomplete and the same were not carried out properly. Thus had rightly conducted the fresh enquiry against the appellant.
19. ' We have heard the learned counsel for the parties at length and with their assistance, have perused the record Minutely.
20. ' It may be pointed out that the allegation against the appellant was that while he was posted as Chief Planning. Officer in the Health Department had solicited the business with JICA on behalf of the said Firm, in which his wife was a partner in the Firm HeSMaG, Balochistan, Quetta and in second Firm i,e, Friends and Company Balochistan Quetta, his wife was Managing Director and 3rd Company did not even exist. The appellant had only recommended to JICA to deal with the said Firm, as aforestated three firms the same was capable to deal with the job. The said recommendations were not accepted by JICA and no deal whatsoever was made by the said Firm.
21. The contention of Mr. H. Shakil Ahmed, learned counsel for the appellant has substance that even if the appellant had written a false letter of JICA to deal with the said Firms in which his wife was a member would not constitute an offence under the E&D Rules. Besides, two enquiries were held wherein he submitted his reply and was personally heard by the said Enquiry Officer, who after conducting enquires recommended that he, be exonerated from the charges; as the allegations' alleged against the appellant were not established. It is not understandable that as to how act of writing a false letter would fall within mischief of E&D Rules. Thus in our considered estimation, the enquiry proceedings were rightly held, therefore, he was rightly exonerated frcm the charge.
22. Thereafter last enquiry was initiated on the letter dated 23rd February, 2000, which reads as follows:- 'GOVERNMENT OF BALOCHISTAN SERVICE, GENERAL ADMN AND INFORMATION DEPTT: (Section-III)
23. ' Quetta, the 23rd February, 2000.
24. ' NOTIFICATION.
25. ' No, S-III-3(8)/2000-SGA&ID, Orders with regard to exonerating Dr. Akhtar Hameed of the charges issued vide this department notification of even number dated 6th October 1999, are hereby withdrawn being ab initio null and void on the grounds of having been issued by an incompetent authority.
26. ' Maj (R) Muhammad Ashraf Nasir ' Chief Secretary."
27. ' It may be pointed out that there is nothing on record to indicate that as to how the previous proceedings held by Enquiry Officers were void and withdrawal order was issued by an incompetent officer. It may further be pointed out that when the enquiry proceedings were dropped on 6-10-1999 by Mr. Abdul Hakim Baloch, the then Chief Secretary/Authorized Officer.
28. ' It may be pointed out that the Summary which was placed before Governor Balochistan wherein it was mentioned that Mr. Hafiz-urRehman, was appointed as Enquiry Officer who had held in their report that the appellant had written a letter to the Donor Agency by violatin, the Government instructions. It may be pointed out that both the aforementioned Enquiry Officers had exonerated the appellant from the charge and recommended that the proceedings against the appellant be dropped but this fact was not brought to the notice of Governor Balochistan while submitting the summary. It is pertinent to mention here that during pendency of the enquiry, an F.I.R. Was registered against the appellant and he faced trial, and ultimately he was acquitted of the charge and while facing the trial before the Court of Anti Corruption Balochistan, Quetta, he tendered resignation from service before the department which was also not accepted and he was removed from services, wherein it was prayed that his removal order be set aside and his resignation may be accepted but another letter was written by the appellant that since the resignation was not accepted by the Government of Balochistan, therefore, he may be reinstated in service. Record reveals that summary was placed before Governor Balochistan that his resignation was not accepted. It may further be pointed out that appellant has already been acquitted of the charge by the learned Special Judge, Anti-Corruption Balochistan Quetta, as observed herein above and the enquiry before the Governor Balochistan did not support the true facts of the case, therefore, subsequent 3rd enquiry held by the authority was illegal, void and against the E&D Rules. Besides, the appellant had been exonerated by the then two Enquiry Officers and no ground has come on record for re-opening the matter. Learned counsel for the official respondent could not point out any illegality or irregularity in two enquiries conducted under the E&D Rules.
29. ' It may be pointed out that in appeal, following prayer has been sought by the appellant:-- "(i) set aside the impugned notification dated 8-5-2000, declared as null and void earlier application of resignation dated 28-4-1999 may kindly be accepted;
(ii) direct the official respondents to reconsider the whole case and thereafter, finally the earlier application of resignation may kindly be accepted;
(iii) set aside the notification No,S.-III-3(8)/2000/S&GAD dated 23-6-2000 and earlier notification No,S-III-3 (8)/99-S&GAD dated 6-10-1999 may be declared final and legal;
(iv) any other relief as deem fit and appropriate after considering the circumstances of the case."
30. ' As observed herein above that during pendency of the appeal, an application was submitted by the appellant that his resignation application may not be considered and he may be directed to be reinstated in service. It may be pointed out that when the appeal was heard and the case was reserved for Judgment, the appellant filed an application wherein he prayed that notification dated 8-5-2000 may be set aside and the appellant may be reinstated in service with all back- benefits.
31. ' The said application has been filed without any notice to the other side, therefore, we are not inclined to accept the prayer of the appellant. However, it would be left open to the department to reconsider the request of the appellant regarding withdrawal of resignation application submitted on 28-4-1999. It may be pointed out that as far as charge-sheet against the appellant is concerned that he had recommended those firms in which his wife was Coordinator or associated with the said firms; though it may not be misconduct but still does cast doubt on his reputation by recommending the said firms, he wanted to favor his wife.
32. ' In view of the above discussion, the notification 8-5-2000 is set aside and the case of the appellant is remanded to the department to -consider whether his resignation may be accepted or he may be reinstated in service. The department is directed to consider the case of appellant within a period of four weeks.
33. ' Parties are left to bear their own costs.