1976 PLP 609 (PLC)

Mian Sher Alam for Petitioner. Zafar Iqbal for Respondents. Date of hearing : 31st March 1975. The petitioner Muhammad Saleern was employed as Octroi Clerk, Town Committee, Dinga. in 1972. His explanation was called for by the Secretary of the Committee on 24-4-1974 with regard to the alleged embezzlement of Rs. 62.60 by him which amount was received as octroi charges from one Muhammad Ashraf, a Shopkeeper in the town but was not deposited with the committee. His explanation was also called for in regard to two other matters which are not relevant for the decision of the present case. He was served with a charge-sheet which was duly replied by biro After halving received the reply, Reipondent No. 2, the Administrator, Town Committee, Dineea, District Gujrat terminated his cervices. His appeal was, however, accepted by Respondent No. 1 and the case was remanded on 20-8-1974 for fresh inquiry and probe.

2. The inquiry into the allegations levelled against the appellant was conducted by Mr. Altaf Hussain Kazmi, Naib-Tehsildar, Kharian, who completed the inquiry on 30-11-1974 holding the petitioner to be guilty of embazzlement of Rs. 62.60. He exonerated him with regard to other charges. The services of the petitioner very terminated in accordance with the finding as contained in the report of the Inquiry Officer by the Administrator. The appeal filed against the said order before the Controll ing Authority was also dismissed on 24-6-1975. The petitioner has now come up to the High Court and has challenged the validity of the orders passed against him.

3. It has been contended by the learned counsel appearing on behalf of the petitioner that the procedure as laid down in rules 36, 38 and 50 of West Pakistan Municipal Servants (Efficiency and Descipline) Rules, 1963 have not been followed in the present case and in the absence thereof the impugned orders cannot be maintained. Rule 36 provides that if upon consideration of report of the Inquiry Officer the authority concerned is of the opinion that a major penalty may be imposed upon the Municipal servant, it shall provisionally determine the penalty to be imposed and shall so inform the municipal servant, and supply him copy of the report of the Inquiry Officer and call upon him to show cause within a reasonable time, which shall not be less than seven days or more than fourteen days, as to why the penalty proposed should not be imposed. Rule 38 provides that any representation made by the municipal servant under rule 36 or 37, shall be taken into consideration by the authority before imposing any penalty; provided that such penalty should not be more severe than the penalty provisionally determined. Rule 50 provides that when an appeal has been submitted to the appellant authority it shall consider whether the facts on which the order appealed against was based have been established, whether the facts established afford sufficient ground for taking action whether the penalty is excessive, adequate or inadequate; and after such consideration shall pass such order as it thinks proper.

4. So far as the supply of copy of the report of the Inquiry Officer, under rule 36, to the petitioner is concerned, its non-supply has been admitted by the respondents in their report. The learned counsel appearing for the respondents has, however, drawn my attention to Annexs. `B' and 'D' filed alongwith the comments showing that show-cause notice as contemplated by rule 36 was issued to the petitioner which was duly received by him on 8-1-1975 and as a consequence thereof he made his statement on 27-3-1975 that he did rot intend to produce any further evidence in defence. The petitioner has, however, denied the receipt and even his signatures on the relevant documents attached as Annexs. 'B' and 'D' by the respondents. I am not in a position to make any observation with regard to it. However, one fact is admitted that copy of the report of the Inquiry Officer was not supplied to the petitioner before he was called upon to show cause as to why he should not be removed. Even if it is accepted for arguments sake that show-cause notice was issued to him, how it could be replied in the absence of the copy of the report as the petitioner could not know as to what was the finding against him and based upon what material. He was to explain his position in view of the major penalty to be imposed upon him in the light of the finding given in the report of the Inquiry Officer and unless the contents of the report were made known to him he could not explain as to why major penalty could not be imposed upon him. It is to be noted that the provision of rule 36 is mandatory and in the absence of its compliance the proceedings held against the petitioner and A the conclusion arrived at in consequence thereof cannot he maintained. Further the alleged notice as contained in Annex. 'D' does not appear to be a show-cause notice. It was intimation to the petitioner that his services had been terminated and if he was to say something in relation thereto then he would be heard on 27-3-1975. It is obviously contrary to the mandatory provision of rule

36. Before any major penalty could be imposed such show-cause notice was liable to be issued. The said notice having not been issued imposition of any penalty or order imposing the penalty upon the petitioner cannot be upheld.

5. Moreover, the order of respondent No. 2, Administrator of the Town Committee is not a speaking order as pros and cons of the case have not been discussed independently therein. The report submitted by the Inquiry Officer has been adverted to and it has been observed thereafter that the Administrator is satisfied therewith. Respondent No. 2 was obliged under the law to apply his mind independently to the facts of the case, assess the situation himself in the given circumstances and then come to conclusion as to whether the finding given in the report was justified or not. Simple observation by the Administrator that he was satisfied with the report cannot be deemed to be an order in the eye of law having not been passed after independent application of the mind. Similarly the Controlling Authority while disposing of the appeal filed by the petitioner did not find as to whether the facts on which the order appealed against was based bad been established and whether the facts established afforded sufficient ground for taking action; and whether the penalty imposed was excessive. The Controlling Authority simply disposed of two of the objections raised by the petitioner. His finding that non-supply of copy of the report to the petitioner did not materially affect the case cannot be justified in the eye of law, as discussed above: The provision in this regard is mandatory and it has been found in the above discussion that in the absence of supply of such copy case of an employee can be affected materially for lack of knowledge with regard to nature of the finding as contained in the report and the material upon which such finding is based. There is no reference in the order of the Controlling Authority whether the facts upon which the order of the Administrator was passed had been established against the petitioner or not and whether the penalty so imposed in the circumstances was justified. The appeal was liable to be disposed of on merits after discussing the pros and cons of the case. In the absence thereof the impugned order cannot be maintained.

6. There is yet another important factor which goes against the respondents. The petitioner has been found guilty under charge No. 2, that he received Rs. 62.60 from one Muhammad Ashraf, a shopkeeper, but did b not deposit the said amount with the Town Committee and as such mis appropriated the same. Muhammad Ashraf's statement was recorded by a Committee set up by the Chairman, Karyana Merchants wherein he accused the petitioner to have received the said amount from him without any receipt. It is interesting to notice that the statement of Muhammad Ashraf was not recorded in the presence of the petitioner nor he was given an opportunity to cross-examine him. Copy of his statement was produced before the Inquiry Officer who also did not record the statement of Muhammad Ashraf himself, but in spite of that relied upon the same without affording any opportunity to the petitioner to cross examine the said person. I really fail to understand as to how such statement could be relied upon. It amounts to condemning the petitioner unheard. Respondent No. 2, Administrator of the Town Com mittee, who was holding inquiry into charge No. 2 was obliged under the law to examine Muhammad Ashraf himself in the presence of the petitioner and then find out as to how far the allegation made under the charge was correct. In the absence of having followed such cannot be upheld.

7. For the aforesaid reasons the impugned orders as referred to above, passed against the petitioner terminating his services, are hereby set aside being illegal, without jurisdiction and of no legal effect. The writ petition is accepted with costs. Petition accepted.