' BARKAT ALI BALOCH (MEMBER).---The Appellant, who was lastly working as Executive Director in the Pakistan Insurance Corporation, was appointed directly in Grade-20 on ad-hoc basis vide order dated 14-11-1989, issued by the Ministry of Commerce, Government of Pakistan. Vide order dated 13-5-1990, issued by the respondent No,2, the services of the Appellant were regularized/ confirmed on permanent basis as per orders of the Commerce Minister, conveyed to the respondent No,2, Both these letters have been appended by the respondents alongwith their comments. The documents, enclosed by the respondents, further reveal that the Appellant was subsequently removed from service vide order dated 10-9-1990, terminating the services of the Appellant. Again vide dated 13-2-1994 (vide para No,2), the Appellant was reinstated, as per orders of the Commerce Minister, having approved the action of reinstatement. Such order of reinstatement dated 2-3-1994 is enclosed with the comments, filed by the respondents. In the month of December 1996, the Appellant applied for Ex-Pakistan leave for performance of Umra w,e,f, 14-12- 1996 to 28-12-1996, which was granted by the respondent No,2 vide order dated 12-12-1996. A no objection certificate for proceedings abroad was also issued, which is enclosed with the comments. But the Appellant, through his application dated 24-12-1996, informed the respondent No,2 that on account of delay in obtaining visa for Saudi Arabia, he was leaving for Umra on 24-12- 1996 and further requested for extension of his leave for 10 days more from 28-12-1996. This application for extension of leave by the Appellant, even before availing the initial leave, was resisted by the respondent No,2 for the reasons written on this application with a remark in respect of disallowing this extension. This document is also enclosed by the respondents at page-297. Vide memorandum dated 29-12-1996, the respondent No,2 disclosed full reasons for disallowing extension of leave to the Appellant as is evident from such document, having been sent by a special messenger. The Appellant, having returned from abroad, was transferred by the Cabinet Secretary, Establishment Division and posted as Managing Director, Sindh Engineering (Private)
Limited vide notification dated 16-1-1997 (annexure 'A' of the appeal). Such notification is available with the appeal file as annexure 'A/1' dated 31-1-1997 whereby the Appellant has been posted as Managing Director, Sindh Engineering (Private) Limited replacing Colonel (Retired) Mir Akbar. Vide annexure 'A/2', the Appellant sent an application to the Secretary, Ministry of Industries & Investment, Islamabad that Managing Director, Sindh Engineering (Private) Limited was not inclined to accommodate the Appellant and the matter was being taken up with the Establishment Division. At annexure ' A/3' of the memo of appeal, the Appellant relinquished the charge of the post of Executive Director w,e,f, 30-1-1997.
2. The controversy between the Appellant and the respondents further depened when after expiry of about a year, a charge sheet dated 19-12-1997 was issued against the Appellant alongwith statement of allegations, which reads as under:-- "No, 172(1) 177-Estt. Date 19th December, 1997 CHARGE-SHEET ' In exercise of the powers conferred on the competent authority under Regulations 29 of P.I.C.
(Staff) Service Regulations 1959, you Mr. Humayun Zia, Executive Director, P.I.C. Are hereby charged for the following acts of misconduct and breach of regulations. The Authority is of the opinion that:- -
(a) You were guilty of misconduct and breach of regulations. The statement of allegations is annexed with this charge sheet. There are sufficient grounds that disciplinary action be taken against you under the said Regulations;
(b) it is not necessary to have enquiry conducted through an Enquiry Officer or Enquiry Committee.
(2) The competent authority, under this charge sheet, informs you that, on the above grounds, it is proposed to impose on you any of the penalties including dismissal from service as described under Regulation 28 of the said Regulations. You are accordingly called upon to explain OR show cause as to why the proposed action should not be taken against you.
3. Your explanation should reach the undersigned within seven (7) days of the receipt of this charge sheet failing which it would be presumed that you have no explanation to offer in your defence and ex-party decision will be taken against you under the said Regulations. You may also indicate whether you would like to be heard in person.
4. These issues with the approval of the competent authority.
(Sd)
(Firozuddin Ahmed)
Chairman ' Mr. Humayun Zia, House No,113/1, 24th Street, Khayaban-e-Sehar, Phase-VI, Defence Housing Authority, Karachi Annexure STATEMENT OF ALLEGATIONS.
' That you were allowed 15 days ex-Pakistan leave w,e,f, 14-12-1996 to 28-12-1996. You were supposed to resume duty in the P.I.C. On 29-12-1996 but instead you sent another application dated 24-12-1996 containing the request for extension of leave for further 10 days on the grounds of obtaining late visa for Saudi Arabia, which was received by the Secretary/Chairman, PIC on 28-12- 1996. Your above application dated 24-12-1996 was disallowed under order dated 28-12-1996. You still did not resume duty. Even if the . 10 -days leave sought by you had been allowed, you were supposed to resume duty on 8-1-1997, but you resumed duty on 12-1-1997. Your unauthorized absence of 14 days from 29th December, 1996 to 11th January, 1997 amounts to misconduct.
' Prior to this charge sheet, you were called upon to explain your position under Memo No,172(1)/177- Estt. Dated 29-12-1996 but you chose not to furnish any explanation. You were thereafter remained twice under two letters of even number dated 13-1-1997 and 4-12-1997 but you did not pay any heed.
(Sd.)
(FIROZUDDIN AHMED)
Chairman Pakistan Insurance Corporation."
' The Appellant sent his explanation to the charge sheet vide annexure 'B/1' dated 24-12-1997, but the same was not accepted by the respondent No,2 and consequently, the respondent No,2 issued the dismissal order 1-1-1998, which reads as under:-- "No, 172(1)/177-Estt. Date: lth January, 1997 AD. 2nd Ramadan, 1418 A:11.
DISMISSAL ORDER ' Whereas you were served with charge sheet No,172(1)/177-Estt dated 19th December, 1997 for misconduct and violation of the PIC (Staff) Service Regulations 1959; whereas your reply dated 24th December, 1997 to the same was placed before the Competent Authority and found unsatisfactory, the Competent Authority, in exercise of the powers conferred on it under regulation 29 read with regulation 30(2) of the PIC (Staff) Service Regulations 1959 dismiss you from the service of the PIC, with immediate effect.
2. This issue with the approval of the Competent Authority.
(Sd.)
(Firozuddin Ahmed)
Chairman ' Mr. Humayun Zia Executive Direcor (dismissed), House No,113/1, 24th Street, Khayaban-e-Sehar, Phase-VI Defence Housing Authority Karachi."
' On 7-1-1998, the Appellant sent his reply to the dismissal order, which is also departmental appeal.
Having failed to receive any response to his departmental appeal, the Appellant finally moved this Tribunal through this appeal on 27-7-1998 enumerating some of the facts and grounds and finally making a prayer that the dismissal order dated 1-1-1998 be set-aside and that the Appellant be reinstated with all consequential benefits. The appeal is accompanied with an application under section 5 of the Limitation Act for condonation of.Delay in filing this appeal.
3. In consequence to notice by this Tribunal, parawise comments to the appeal have been filed on behalf of respondent No,2 alongwith numerous but informative documents.
4. We have heard Ch. Rashid Ahmed, learned counsel for the Appellant and Mr. Faisal Ghani, learned Counsel for the Respondents. It has been mainly contented on behalf of the Appellant that the order of dismissal issued in respect of the Appellant is illegal in as much as that neither any inquiry has been held prior to issuing of this dismissal order nor any cogent reason has been assigned for denying the Appellant the right of defence. According to the learned counsel, the dismissal order has been issued under Regulation-29 read with Regulation 30(2) of the Pakistan Insurance Corporation (Staff) Service Regulations 1959 being colorful exercise of the powers. It has further been argued by the learned counsel that no maximum punishment viz: dismissal from service can be imposed without holding a formal and independent inquiry. It is further contended by the learned counsel that it was incumbent upon the respondents to provide full opportunity of defence to the Appellant, which has not been done. It has also been contended that the Appellant was not provided an opportunity of personal hearing. On the other hand, the learned Counsel for the Respondents has defended the action taken against the Appellant and has vehemently argued that the very appointment of the Appellant being over and above the Rules and Regulations in as much as the same was made without any advertisement was not proper. It has further been argued on behalf of the respondents that the Appellant managed to influence the respondents through political pressure which, according to the learned counsel, is evident from numerous documents, enclosed with the comments. The learned Counsel for the Respondents has further alleged that the Appellant proceeded abroad without obtaining proper permission and having over stayed there, the Appellant remained absent for a full year, leaving no alternative with the respondents, but to take action against the Appellant under the provisions of Regulation-29 and 30 of the Regulations 1959. The learned Counsel for the Respondents has defended the action of dismissal, taken against the Appellant by the respondents and has further raised the point of limitation in respect of the appeal of the Appellant being time-barred. Both the learned counsel has been extremely dexterous in quoting numerous authorities in support of their contentions.
5. Before adverting to the actual points in issue, we intend to resolve the question of limitation having been raised on behalf of the respondents. No doubt the facts of appeal suggest that this appeal before the Tribunal is delayed by 3/4 months, keeping in view the date of departmental appeal, have been made by the Appellant on 7-1-1998, but at the same time, we find that this departmental appeal of the Appellant has not been replied by the respondents. The Appellant has enclosed an application under section 5 of the Limitation Act for condoning the delay, if any, in filing this appeal. In this respect, we are of the view that since the Appellant has been met with extreme penalty of dismissal from service, without holding any enquiry; hence, we are inclined to condone the delay and to decide this appeal on merits on available record. Thus we allow the application for condonation of delay filed under section 5 of the Limitation Act, moved by the Appellant, without being enmeshed in technicalities.
6. We have considered the arguments, advanced on behalf of both the parties and have also made effort to go through the appeal file. We have been particularly impressed by the effort on the part of respondents to collect the document in respect of the appeal of the Appellant, which have been enclosed with the comments. The respondent No,2 has enclosed a document under the heading "Summary for the Commerce Minister", which is available and spread over four pages. The perusal of this summary shows that the respondents were in possession of enough material against the Appellant, which they have categorized as (a) Legal Irregularity, (b), (c) and (d) as Administrative irregularities (absconding from duty and (e) Financial Irregularity in para-1 of the Summary. Besides, paras 2 & 3 of this summary also make mention about procedure adopted by the respondents while dealing with the case of the Appellant. We are surprised that despite such material in the possession of the respondents, which according to them was used and considered in passing the order of dismissal against the Appellant, yet we fail to understand as to what prevented the respondent, the r-spondents from holding a regular, independent and detailed inquiry against the Appellant in order to confront the. Appellant with such enormous and adverse material. The respondents have also appended a copy of Pakistan Insurance Corporation (Staff)
Service Regulations, 1959, which provided the entire procedure in respect of disciplinary matters pertaining to the officers/employees of the respondent's corporation. Despite being in possession of such material and the method of conducting disciplinary proceedings, as envisaged in the Regulations of 1959, the respondents could have conducted a thorough and detailed inquiry against the Appellant instead of resorting to short cut method of dismissing the Appellant from service under colour of provisions, contained in. Regulation 30 whereby the conduct of regular inquiry can be dispensed with on account of grounds, mentioned therein and not otherwise. On the other hand, the Regulation No,29 provide as under:-- "29. Procedure before awarding punishment:--
(1) No order of dismissal, removal or reduction shall be passed against an employee except where such order is based on a conviction by criminal Court or by a Court martial, unless he has been informed in writing of the grounds on which it is proposed to make such order, and has been afforded an adequate opportunity of defending himself.
(2) The grounds on which it is proposed to make such order as aforesaid shall be reduced to the form of a definite charge or charges which shall be delivered to the employee together-with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration and the employee shall be required to put in writing within a reasonable time, a statement of his defense and an opportunity shall also be given to him to be heard in person, if he so desires, and any oral statement made."
7. In view of number of authorities, provided by the learned Counsel for the Appellant as well as numerous such authorities and expositions of this Tribunal as well as the Hon'ble Supreme Court, it has now become virtually a rule that no extreme and maximum penalty can be inflicted upon an officer employee (1) without holding proper and regular inquiry, (2) without holding independent and fair inquiry, (3) without providing an ample opportunity of defence to the delinquent officer/employee and lastly (4) the reasons in writing for dispensing with such inquiry, if a short cut method is adopted by the punishing authority. Keeping in view the above criteria, we find that the respondents have failed to adhere to any of above precautions in case of the Appellant; hence, with all regards to the relevant authorities, produced by both the learned counsel for the parties, we would like to adhere to the basic principle that the Appellant was entitled to a full fledged inquiry before passing of a major punishment against him.
8. In the instant appeal, the perusal of charge sheet dated 19-12-1997 shows at sub-para (a) that the Appellant was guilty of misconduct and breach of regulation and that there were sufficient grounds for taking disciplinary action against the Appellant under said Regulations (1959). But immediately thereafter, through insertion of subpara (b), it has been mentioned that, "it is not necessary to have enquiry conducted through an Enquiry Officer or Enquiry Committee". It has already been pointed out, herein above, that keeping in view the enormous material, as claimed by the respondents through their comments and documents, the respondents were obliged to bring forth these entire allegations and adverse material before the Appellant do that he could have a chance to rebut the same, but this has not been done by the respondents, as such, we are of the view that grave injustice and violation of established rules in respect of conducting disciplinary proceedings has been committed by not holding a regular, independent and thorough inquiry against the Appellant.
9. Before further dilating upon other issues in respect of the merits or veracity of these allegations, we would suffice to confine ourselves to the remarks that it is a bit case where the charges against the Appellant can be probed through a formal inquiry.
10. In view of the above facts and circumstances and for the reasons given, we allow this appeal for the simple reason that the respondents would conduct a thorough and detailed inquiry against the Appellant in respect of the allegations, contained in the charge sheet and statement of allegations.
Hence, while allowing this appeal, keeping in view the above observations, 'we set-aside the order of dismissal dated 1-1-1998, passed against the Appellant and order the reinstatement of Appellant to the post, which he was availing at the time of his dismissal. The respondents shall conduct an inquiry as provided under the provisions of Regulations of 1959 wherein the Appellant shall be given full opportunity to defend himself. Such inquiry, in all respects, would be completed within a period of six months from the date of receipt of this judgment. The question of back-benefits and the decision in respect of the intervening period from the date of dismissal to the date of reinstatement will follow the result of such inquiry.
11. With these observations, this appeal is disposed of accordingly. The copy of this judgment be sent to all the concerned forthwith with no orders as to costs.