1981 PLP (C (PLC(CS))

M. SALEEM CHAUDHARY (CHAIRMAN).--‑Amanullah Khan Durrani, ex Superintendent Jail, appellant, has filed this appeal on 15‑3‑1979 under sec tion 4 of the Punjab Service Tribunals Act, 1974 against the order of his dismissal from service dated 23‑12‑1978.

2. Briefly, the facts of the case are that the appellant was Superintendent, Jail, Mianwali, when on the night between 19/20th August 1978, five Indian national convicts escaped from the Central Jail, Mianwali due to gross negligence on the part of the guarding staff. The escaepes were serving long term jail imprisonment extending from 7 to .14 years' R. I. under section 59 of the Pakistan Army Act and were physically lodged in Cell No. 8, Barrack No. 9 of the Mianwali Central Jail alongwith 37 Pakistani prisoners. The appellant, Deputy Superintendent, Jail, and Assistant Superintendent, Jail alongwith ten others were placed under suspension. A judicial enquiry was ordered by the D. C. Mianwali. The I. G. Prisons, Punjab also held an enquiry (see Inquiry Report dated 22‑8‑1978). On 12‑9‑1978, the Home Secretary issued charge‑sheet to the appellant. The appellant submitted a reply on 28‑9‑1978. On 2‑10‑1978, the Government appointed Mian Mohd. Rafi, OSD‑I (Enquiry), S&GAD as Enquiry Officer. The appellant filed a writ petition in the High Court which. was dismissed on 27‑11‑1978. On submission of the enquiry report, the Government issued show‑cause notice dated 9‑11‑1978 and after offering him an opportunity of being heard passed the order dated 23‑12‑1978 dismissing the appellant from service. The appellant on 21‑1‑1979 filed a review petition before the Government which was rejected on 14‑2‑1979.

3. The appellant has attacked the impugned order on the following grounds:‑ (i) That the disciplinary proceedings against the appellant by the Home Secretary to Government of Punjab were not initiated by the competent authority, i. e. the Governor in the case of the appellant. According to the appellant, in his case the Home Secretary could act as an authorised officer only under rule 6 of the Efficiency and Discipline Rules, 1975. Thus the departmental proceedings having been initiated in violation of rule 5 of the E & D Rules were vitiated. (ii) That the charge‑sheet dated 12‑9‑1978, served upon the appellant in substance appeared to be a show‑cause notice envisaged under rule 6(b) of the E & D Rules, 1975 which failed to comply with the requirement of the said rule inasmuch as no punishment or grounds for action had been specified in the same. The charges were vague and unspecific in nature. (iii) The charge‑sheet served upon the appellant failed to comply with the requirements of rule 7(l)(2) which required the enquiry officer to specify as to whether the defaulter desired to be heard in person. The appellant was not allowed an opportunity of being heard by the competent authority which was contrary to the provisions of rule 7 of the E & D Rules, 1975. The appellant was also not allowed period of 14 days prescribed under the aforesaid Rules, According to appellant the use of expression `shall' in sub‑rule (2) of rule 7 made it obligatory upon the Enquiry Officer. (iv) The appellant also complained of lack of due opportunity to defend himself as he was not allowed to cross‑examine the witnesses examined against him fie was also not allowed to summon the witnesses cited in his defence. Moreover he was not allowed the facility of representation by a counsel before the enquiry officer. (v) The appellant also made a grievance that the show‑cause notice served upon him was equally vague as it accused him for unspecified commissions during the period of tenure at Mianwali, i.e. from 1976 to 1978. In any case the above charges were not in accordance with the charge‑sheet. The appellant also argued that the alleged charges did not amount to misconduct. Reliance was placed in this behalf on 1980 P L C (C. S.) 270 In re: Rafiq Ahmad. (vi) According to the appellant, assuming without conceding, even if the allegations were correct still the same could not amount to inefficiency. Reliance was placed in this behalf on P L D 1977 S C 93 (In re: A. U. Musarrat v. Government of West Pakistan). (vii) Lastly, the objection of the appellant is that he was subjected to discrimination inasmuch as Rehmat Ali, Deputy Superin tendent, Jail, Mianwali, who was similarly involved was merely reverted.

4. The Government Pleader controverted the contentions above with the submissions that:‑ (i) As held by this Tribunal in 1980 P L C (C. S.) 418 (In re: (Mubarik Ahmad Malik v. Federation of Pakistan), the proceedings had been validly initiated under rule 5 of the E & D Rules, 1975 and the objec tion of the appellant stood concluded by the aforesaid judgment of this Tribunal. In that decision this Tribunal held that the Chief Secretary to the Government of Punjab was competent to initiate the proceeding. He also relied upon the decision of the Supreme Court of Pakistan In re : Amjid Ali Mirza reported as P L D 1977 S C 182 to show that it was not necessary for the President/Governor to perform the functions of the Government in person. He also referred to P L D 1980 Lah. 50 to show that the Secretary could act as Government. He submitted that the office of the authorised officer and the authority in the case of a civil servant could be combined in one and the same person as defined by provision to rule 2(1)(c) of the E & D Rules, 1975 which was: "Provided that in relation to certain civil servants the `authority' may be authorised to act as "authorised officer". According to the Government Pleader the authorised officer and the authority in the case of the appellant was Government and, therefore, Home Secretary was competent to act as such. Thus in this case the Home Secretary to Government of Punjab was competent to act on behalf of the Government. (ii) With regard to the charge‑sheet he submitted that under the Punjab Civil Servants (E&D) Rules, 1975, in cases where charge‑sheet was issued, no show‑cause notice was at all envisaged. Thus the plea was not tenable unless it was shown that the appellant had suffered any material prejudice in respect of the same. It was also contended by him that the substance of the charges and the likely consequences had been clearly conveyed and as such the appellant suffered no prejudice, whatsoever, in his defence. Thus the requirement of rule 6(3) of the E & D Rules bad been adequately complied with. (iii) He contended that the idea of serving a charge‑sheet on the appellant as held by this Tribunal in 1979 P L C (C. S.) 58 (Muhammad Akbar v. Punjab Government) was to put the appellant on notice. No prejudice was caused to the appellant so long as the purposes of the charge‑sheet had been served. The decision by this Tribunal is based upon the authority of the Supreme Court reported as P L D 1977 S C

182. The Government Pleader also submitted that the appellant suffered no material prejudice nor any such objection was raised at any stage during the depart mental proceedings. (iv) He vehemently denied that the appellant had not been allowed reasonable opportunity of personal hearing. He submitted that the competent authority while acting under rule 8 of the Rules, summoned him but the appellant chose not to appear on the ground that be was pursuing the writ petition filed by him before the Lahore High Court. (v) He denied the assertion that the appellant was not allowed to cross examine the witnesses. He also submitted that the appellant has failed to show that he suffered any prejudice by not summoning the witnesses whose evidence could not have any material bearing on the result of the proceedings. In fact the appellant did not disclose it at any stage that the statements of the defence witnesses had any relevance to the charges against him. (vi) He controverted the plea that charges were vague. It was submitted by the Government Pleader that the incident of escape of Indian prisoners from Mianwali Jail took place between 1 a.m. to 2 a.m, and it came to the notice of the appellant at 3 a. m. and he did not take any action except that he informed the D. C., Mianwali, on telephone at about 6 a.m. The local Police was not informed. Moreovcr the appellant was also guilty of disobeying the instructions in the Jail Manual that the prisoners who escaped from Mianwali Jail had to be kept in segregation but unfortunately either due to lack of proper care or deliberately they had been rather provided with all sorts of facilities in the jail. The appellant was charged for his failure to observe the provisions of Jail Manual particularly in this case and generally during 197.6 to 1978. (vii) He also argued that the nature of the responsibilities of Rehmat Ali Shah were different than the appellant. Thus his case was distinguishable.

5. After hearing both the parties we are inclined to agree with the learned Government Pleader that the proceedings have been properly initiated and the decision of the Supreme Court in Amjid Ali Mirza's case furnished complete answer to the objection: "From the plain reading of the Constitutional provision, it is not possible to spell out nor does it otherwise, appear to be reasonable to presume, that the show‑cause notice must necessarily be issued by the appointing and dismissing authority himself. Article 32 of the 1962‑Constitution authorised the President to make rules for the exercise of the powers vesting in him and for regulating allocation and transactions of business of the Central Government." Similarly, the charge‑sheet served upon the appellant was not defective or vague in any manner. As contended by the learned Government Pleader, the appellant had been allowed prescribed period for answering the charge and the charge‑sheet has been issued by the competent authority. We are also satisfied that the penalty specified in the charge‑sheet was sufficient to give adequate notice to the appellant to defend himself. As regards the objection of the appellant about the non‑compliance of rule 7 of the E&D Rules, the appellant did not raise any objection as to the lack of warning or as to his desire to be heard in. person. In the absence of any allegation of prejudice suffered by the appellant, the objection did not merit any serious consideration. The appellant appeared in person during the enquiry proceedings and he had been provided with due opportunity to defend himself including the opportunity to cross‑examine the witnesses. As to his objection to be defended through a counsel, it has been satisfactorily shown by the department that the Enquiry Officer was not bound to allow the facility of counsel to the appellant. The appellant also failed to show to us as how the evidence of the witnesses not examined by the Enquiry Officer were indispensable in this case. Even during the hearing of this appeal the appellant could not make out the case in this regard. In our view the Enquiry Officer had acted properly in dispensing with the evidence of the aforesaid witnesses. The appellant has also failed to show to us as to how the disciplinary proceedings taken against him were defective. In the handling of escape of Indian prisoners, the conduct of the appellant betrayed his inefficiency and negligence. He failed to act in accordance with the requirements of Jail Manual. Even the directions given by the D. I. G., Prisons in his inspection note dated 26‑2‑1978 remained uncomplied with. The appellant failed to carry out periodical night inspe;ttions or keep the Indian prisoners in segregation. Contrary to the requirements they were not bar‑fettered. There were evident deficiencies in watch and guard management. The manner of escape and the circumstances surrounding the escape lent considerable credence to the charges of inefficiency against the appellant. He failed to inform the Police immediately which further worsened the scope of the recapture of the escapees. Thus the allegation of inefficiency and negligence was established against the appellant. His reliance on the decision of the Supreme Court as to the findings of inefficiency was clearly distinguishable. Their Lordships in A. U. Mussarat's case were considering the case of solitary lapse try an official in handling of a departmental file. It was not fair to extend the ratio of the decision in the case of the nature presently before us inasmuch as it will not be proper to hold that in a sensational case of the escape of dangerous prisoners which was highly prejudicial to the interest of security of the country will not attract the findings of inefficiency even in a single instance. The case was clearly distinguishable on facts. The contention that the appellant was not guilty of misconduct was not acceptable and the decision reported as 1980 P L C (C. S.) 270 was widely of the mark. He failed to avail of the opportunity of personal hearing offered to him. He could not be heard to complain of the same before us. We are therefore, satisfied that he had the due opportunity to defend himself and he was under no confusion as' to what he was up against. In view of the gravity of the incident and the responsibility of the appellant we also do not feel much impressed by the last plea of the appellant. Consequently the appeal fails and is dismissed with costs. Appeal dismissed.