1981 PLP (C (PLC(CS))

Shafiq Ahmed Malik son of M. Nizamuddin entered Government service initially in the Central Excise and Salt Department in 1943 at Ambala (India) and at the time of Partition of Indo‑Pakistan Sub‑continent in 1947, he was holding the post of an Upper Division Clerk. He opted f6r service in Pakistan and was put op duty as U. D. C. in the office. of Superintendent Central Excise and Land Customs, Sukkur. He was promted as Head Clerk in 1962. It is the case of the appellant that on 25th March 1965, he was serving as Head Clerk in the Office of the Superintendent Central Excise and Land Customs, Chaman when an incident took place due which the Superintendent got annoyed with him. According to the appellant when he entered the office of Mr. A. Waheed Khan, Superintendent the latter got up from his seat and started abusing him and physically assaulted him. The Superintendent made a report about the incident to the Assistant Collector, Central Excise and Land Customs Quetta, who being a close friend of the Superintendent issued a charge‑sheet dated 9‑4‑1965 charging the appellant for misconduct on two counts firstly, for being insubordinate to his Head Office and leveling baseless allegations against him and secondly, of instigating Clerks of his office to go on strike: It was the case of appellant that on being served with charge‑sheet he made an application dated 15‑4‑1965, requesting the Assistant Collector, Central Excise and Land Customs for supply of a copy of complaint lodged against him but no such copy was supplied. On '17‑4‑1965, the appellant submitted a written complaint against the Superintendent to the Collector, Excise and Land Customs Karachi, and in the meantime the Superintendent got the appellant transferred from Chaman to Quetta. It is further contended on behalf of the appellant that when the Super intendent came to know about the complaint made by appellant against him he persuaded the appellant to withdraw his complaint and manipulated the withdrawal of the charge‑sheet against the appellant by the Assistant Collector, Quetta. The charge‑sheet was cancelled vide order of the Assistant Collector No. 1(20) Estt/Confl/64 dated 19‑4‑

64. The order of his transfer to Quetta was however not cancelled. On 5‑8‑1965 while serving as Head Clerk in the Office of the Superintendent Central Excise and Land Customs (Preventive), Quetta he received charge‑sheet dated 5‑8‑1965 in respect of the same incident regarding which the previous charge‑sheet had been cancelled. Mr. A. S. Y. Siddiqui, Assistant Collector Central Excise and Land Customs Hyderabad, was appointed as an Enquiry Officer, and held enquiry on 7‑10‑1965 at the Division Officer, Quetta. A show‑cause notice dated 18‑11‑1965, was served on the appellant who submitted his reply on 4‑12‑1965. The Collector, Central Excise and Land Customs, Karachi by his order dated 23rd December, 1965 reverted the appellant to the post of U. D. C. with effect from date of the order. On 8th September, 1966 the' appellant filed suit in the Court of the Second Civil Judge, First Class, Karachi against the Secretary, Central Board of Revenue, Islamabad seeking declaration that the order of Collector, Central Excise and Land Customs, Karachi, reducing him from post of Head Clerk to the post of U. D. C. was mala fide illegal and unjustified, and that he continued to be the Head Clerk in the service of the defendant. The suit was, however, dismissed on 31st August, 1969. The appellant filed appeal which was in turn dismissed by the Additional District Judge, Karachi vide his judgment dated 12‑8‑1969. Being aggrieved by the aforesaid decisions the appellant filed the instant appeal in this Court. Before dealing with the grounds taken in the memo of appeal it may be stated that the right of second appeal is given expressly on grounds mentioned in clauses (a), (b) and (c) of section 100, C. P. C. and, therefore, the second appeal shall lie when the decision is contrary to law or to some usage having the force of law or there is failure to determine some material issue of law or usage having force of law and lastly if there is a substantial error or defect in the proce6ure which may possibly have produced error or defect in the decision of the case upon the merits. It may here be remarked that the provision restricting the grounds is based on the ground of public policy expressed in the maxim interest reipullicaeuts it fin is Ilitium which means that it concerns the State that there be an end to litigation. A perusal of the record would show that the grounds of appeal mentioned in the memorandum of appeal were taken earlier before the civil Court, and the first Appellate Court namely that the order of reduction of rank by way of penalty was passed in contravention of the mandatory provisions of rule 6 of the Government Servants (Efficiency and Discipline) Rules, 1960 in that‑ (a) no statement of allegations was supplied to the appellant alongwith charge‑sheet; (b) findings were not submitted with grounds thereof within 10 days of the conclusion of the departmental proceedings; (c) no preliminary enquiry was held before issuance of charge‑sheet; (d) the Enquiry Officer, did not follow the procedure as laid down in rule 6 as the appellant was not given proper opportunity to put in his defence; and (e) that there was no proper appreciation of oral as well as documentary evidence on record that impugned order was mala fide. The learned counsel for 'the appellant has also contended that since the first charge‑sheet dated 9‑4‑1965 was withdrawn on 19‑4‑1965. the second charge‑sheet served on the appellant on 5‑8‑1965 which had reference to the same incident and more or less the same charges could not have been issued to the appellant. With regard to non‑compliance with the provisions of rule 6 of the Government Servants (Efficiency and Discipline) Rules, 1960, the learned counsel did not press the grounds earlier taken including the ground that the appointment of Enquiry Officer, was improper and has merely confined himself to factual position that the statement of allegations was not supplied with the charge‑sheet and that no proper opportunity was given to the appellant to put in his defence. It has been further clarified that the plea is based on the ground that copies of record were not supplied. A perusal of the judgment of the lower Courts which shows that the issues in connection with the above‑mentioned grounds were settled and findings given after legal and proper appreciation of the evidence on record. The grounds mentioned above were those of facts and there are concurrent findings of both the lower Courts with regard to the same, after appraisal of the evidence on record. It may incidentally be stated that the ground that the first charge‑sheet was withdrawn and replaced by second charge -sheet was never agitated before the Enquiry Officer, or any other authority. The withdrawal of the first charge‑sheet admittedly was not after the charges therein had been enquired into and, therefore, it cannot be said that the appellant was exonerated of the charges. There is evidence on record which shows that it had been contended that the first charge‑sheet served on the appellant was not by proper authority and therefore no exception' could be taken to the withdrawal of that charge‑sheet an the issue of the second charge‑sheet by the proper authority competent to do so under the rules. With regard to the ground that charge‑sheet was not supported by statement of allegations it is apparent that the lower Courts had considered this plea and the findings was given that the allegations in the charge‑sheet were clear and there was no necessity of any other statement of the same. Whatever allegations had been made against the appellant had been incorporated in detail in the charge‑sheet. It was further remarked by the first appellate Court that at no stage of the enquiry the appellant had demanded the statement of allegations and that no prejudice had been caused to him by not supplying the statement of allegation separately. With regard to the ground that no proper opportunity was given to the appellant to show cause against the charges the argument of the learned counsel, for, the appellant is two‑fold. Firstly, it is con tended that copies of the records were not made available to him. The learned counsel for the respondent, however, has pointed out that the copies were never applied for or orally demanded by the appellant from the Enquiry Officer during the course of proceedings. The second contention of the learned counsel for the appellant that proper opportunity was not given to the appellant to adduce evidence in defence is not substantiated as it is quite clear from the judgment of the first appellate Court that the appellant cross‑examined the witnesses in the enquiry appearing against him and examined as many as 5 witnesses in defence. Having dealt with the grounds of appeal on merits it may further be added that the appel lant in the plaint filed before the Civil Judge, Karachi had prayed for a decree declaring that the impugned order of the Collector, Excise and Hand Customs, Karachi, was void and inoperative and he continued to be head Clerk in the services of the defendant. There was no further prayer about any consequential or other relief. It is admitted position that the appellant retired from service on 10th March, 1976. Looking to the relief sought therefore, the appeal has also become infructuous. In view of what circumstances state' above I find that no case has been made out for me to differ from the findings recorded by the lower Courts on the factual grounds taken and that nothing has been urged to show that the decisions are contrary to law I therefore, find no force in the appeal which is accordingly dismissed with costs. Appeal dismissed.