1993 PLP (C (PLC(CS))

CH. HASAN NAWAZ (MEMBER): ‑‑While he was working as Upper Division Clerk (B‑7) under Director (Development), CTR, Lahore Cantt. the appellant of this appeal under section 4 of the Service Tribunals Act, 1973 was removed from service on 19‑10‑1988 in consequence of proceedings under the Government Servants (Efficiency and Discipline) Rules, 1973.

2. The disciplinary proceedings were started with the service of the following show‑cause notice dated 10‑4‑1988: "PAKISTAN TELEGRAPH AND TELEPHONE DEPARTMENT. Office of the General Manager, Central Telecom. Region, Lahore No. SA/Z‑427/II/17, dated 10‑4‑1988 Whereas you Mr. Abdul Majid, UDC (B‑7) were transferred under Director Development CTR, Lahore Cantt. vide G.M. CTR, Lahore No. SA/E‑800‑52, dated 5‑3‑1988 and L.P.C. was accordingly issued. As per your entitlement Account Branch of Regional Office prepared pay bill of only five days A you remained on the strength of Regional Office upto 5‑3‑1988. Whereas on 2‑4‑1988 you on hearing that only five days pay was due to you from the Regional Office entered in the room of Accounts Officer Regional Office at 12.00 hours and started abusing, alleging corruption and threatened of dire consequence in presence of Audit Party, I.I. Account and Accounts Officer (Revenue), Regional Office, Lahore. In spite of requests of Accounts Officer and others present in the room you did not stop and even slapped the Record Supplier Mr. Anwar. You also quarreled with Mr. Bilal Ahmed and others hurled abuses and used un-parliamentary/derogatory language. Whereas in preliminary inquiry you admitted your offence in toto and rather still chose to use the same abusive filthy and objectionable language, passed personal remarks against Officers of the Regional Office without any reason or rhyme. And whereas from the above facts and circumstances it is evident that having crossed all the limits of decency and official decorum you have ceased to be a gentleman and a good Government servant and are therefore prima facie guilty of misconduct as contained in Government Servants (E&D) Rules, 1973. The Authorised Officer has sufficient material before him to dispense with inquiry proceedings. Now, therefore, you the said Mr. Abdul Majid, UDC are hereby directed to show cause within 14 days of receipt of this show‑cause notice as to why the penalty of dismissal from service should not be imposed upon you on the above‑mentioned ground under Government Servants (E&D) Rules, 1973. Stated at the same time whether you desire to be heard in person. In case no written reply is received within the time limit prescribed herein, the case will be decided ex parte. (Sd.) Nisar Ahmad Authorised Officer Asst. Director Traffic, Central Telecommunication Region, Lahore."

3. His explanation in writing dated 19‑4‑1988, was not considered sufficient and he was served with the following final' show‑cause notice on 7‑6‑1988: Office of the General Manager, Central Telecomm: Region, Lahore. Memo No:SA/Z‑427/11/20 Dated at Lahore the 7‑6‑1988. Whereas you Mr. Abdul Majid, U.D.C. R/O CTR Lahore (B‑7) working under the Director Development CTR, Lahore Cantt. Were served with a show‑cause notice vide this office memo No. even dated 10‑4‑1988 with the charge of misconduct. And whereas your written defence dated 19‑4‑1988 signed on 14‑5‑1988 is quite unsatisfactory and the charge of misconduct stand established against you during the preliminary enquiry (copy enclosed). And whereas from the above facts and circumstances, it appears that you are prima facie guilty of gross misconduct. Now therefore, you the said Mr. Abdul Majid U.D.C. are hereby directed finally to show cause within 14 days of the receipt of this memo as to why the penalty of dismissal from service should not be imposed upon you on the grounds of misconduct under the Government Servants (E&D) Rules, 1973, stating at the same time whether you desire to be heard in person or adduce any witness evidence in favour of your defence. Your written defence should reach the undersigned within the period prescribed herein, failing which it shall be presumed that you have nothing to say in your defence and case shall be decided ex parte on merits. (Sd.) Nisar Ahmad (Authorised Officer) Asstt. Director Traffic R/O CTR, Lahore."

4. Notice dated 10‑4‑1988 was in consequence of a complaint purporting to have been made on 2‑4‑1988 by Shabbir Hussain Shah, A.O./Revenue Lahore, The details of this complaint are not necessary and it would be sufficient to say that serious allegations of misconduct and assault were made against the appellant by the complainant. The appellant has placed on there cord a photostat copy of a complaint made by him on the same day to Director, Telegraph Central Communication Region, Lahore. He alleged that he was given a beating by Mr, Bilal, Secretary General of the Admin: Union when he went to the Accounts Branch on 2‑4‑1988 to get his salary. It was alleged by him that Mr. Bilal plunged a paper weight at his head which caused a serious injury and that he gave him a severe beating at the instance of Malik Nisar, Assistant Director Admn,

5. The main thrust of arguments of appellant's learned counsel was that proper procedure had not been adopted in this case and that it was not possible to sap that the appellant had been given an adequate opportunity of defending himself against the action proposed to be taken against him. Rule 5(1)(ii) provides that "the Authorised Officer shall decide whether in the light of the facts of the case or the interests of justice, an inquiry should be conducted through an Inquiry Officer or Inquiry Committee. If he so decides the procedure indicated in Rule 6 shall apply". Rule 5(1)(iii) lays down that "if the Authorised Officer decides that it is not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Committee, he shall (a) by order in writing inform the accused of the action proposed to be taken in regard to him and the grounds‑ of action and (b) give him a reasonable opportunity of showing cause against that action".

6. It appears from the record that in this case the Authorised Officer has proceeded under Rule 5(1)(iii) rather than Rule 5(1)(ii) of the Rules which requires the conduct of an inquiry. We are of the view that the summary procedure adopted in this case by the Authorised Officer was not justified under the circumstances of the case. The allegations made against the appellant were such in nature as required a regular inquiry where he would have had the opportunity of cross‑examining the witnesses and producing evidence in defence. There was hardly any justification for presuming that the allegations made by the complainant m his application dated 2‑4‑1988 were correct, even though a preliminary inquiry had been conducted before service of notice dated 10‑4‑1988. We do find a mention of such an inquiry in the final show‑cause notice dated 7‑6‑1988 but it is not clear as to whether this inquiry was conducted before or after the service of notice dated 10‑4‑1988. In any case there is nothing substantial on the record to show that the appellant was associated with any such inquiry and that he has had the opportunity of cross‑examining the witnesses and producing evidence in defence.

7. Regardless of this preliminary inquiry, whenever it was conducted, we hold the view that the circumstances of this case dictated an action under Rule 5(1)(ii) where the procedure laid down in Rule 6 of the Rules was to be followed. The complaint made by Shabbir Hussain Shah, Accounts Officer Revenue admittedly made a basis for initiation of disciplinary proceedings and the service of show‑cause notice dated 10‑4‑1988. As we have already noticed before, the appellant also made a complaint on the same day to the Director Telegraph. There was absolutely no justification whatsoever for adoption of summary procedure by the Authorised Officer in the light of the facts of the case. The appellant had a counter version and there is no reason why the matter should not have been gone into by an Inquiry Officer or the Inquiry Committee. We are conscious of the fact that it is for the Authorised Officer to decide whether an inquiry need be conducted either in the light of the facts of the case or the interests of justice. But this power does not appear to have been exercised in a proper manner. We hardly see anything on the record to show that he dispensed with the necessity of inquiry with any application of mind. He appears to have presumed the existence of certain facts without any regular' inquiry. Allegations were made against each other by both the parties and the'' circumstances required a regular inquiry where the appellant would have had the opportunity of defending himself. Therefore, we are of the considered view that the procedure adopted in this case did not promote the interests of justice.

8. The appellant cannot be said to have been given an opportunity of explaining the charge against him. and other relevant circumstances which have been taken into consideration by the competent authority while passing the impugned order.

9. Whether the circumstances of the case had required a regular inquiry in the interests of justice has to be decided with reference to the facts of each case. We find it difficult to endorse the view that the Authorised Officer has got the discretion or unlimited powers of deciding whether an inquiry is or is not necessary in a particular case. The Authorised Officer's discretion in this regard is open to judicial review and the Tribunal is competent to decide whether the authority given by Rule 5(1)(ii) has been properly exercised.

10. For these reasons, the appeal is accepted and the impugned order of 19‑10‑1988 is set aside. The appellant shall be reinstated in service but the respondents shall proceed against him afresh under Rule 6 of the Rules and pass any order in accordance with law including that of suspension. There will be no order as to costs. A.A./742/Sr.F Case remanded.