1978 PLP [C (PLC(CS))

FAKHRUDDIN H. SHAIKH (CHAIRMAN): The appellant was serving as Executive Engineer in the irrigation and Power Department on 9‑8‑1975 when a show‑cause notice for misconduct was served upon him. The notice elaborately contained the irregularities and other wrongful acts alleged to have been committee by the appellant in the discharge of his duty. The appellant submitted his reply to this notice. The Government was however not satisfied with the reply and therefore reverted him to the post of Sub Divisional Officer for a period of 6 months with the direction that thereafter his cast will be considered on merit. This order was passed on 21‑10‑1975.

2. Thereafter all of a sudden another show‑cause notice dated 13th April, 1976 was issued to him for persistent reputation of being corrupt and outer malpractices and he was called upon to explain why major penalty should not be imposed upon him. The appellant submitted his reply to this show‑cause notice also but the Government was not satisfied with his reply either, therefore, by an order dated 17th May, 1976 he was compulsorily retired under rule 5 (4) (b) of the Baluchistan Civil Servants (Efficiency and Discipline) Rules, 1974. He has now challenged both the above orders in this appeal.

3. So far as the first order of reversion is concerned it appears to be quite in order and no exception can be taken to it. A detailed show‑cause notice was served upon him, in which it was made clear that the allegations mentioned in the notice might entail major penalty. This show‑cause notice is an Annexure 'A' with the appeal. There are several enclosures to this show‑cause notice in which details of the wrongful expenditure made by him and the huge financial loss allegedly caused by him to the Government, have been described thoroughly. He was therefore given full opportunity to meet the allegations. The procedure as laid down in the rule 5(4) have been followed in this case.

4. The learned counsel far the appellant has challenged the legality of the reversion order on two grounds. Firstly it is alleged that the Authorised Officer did not mention in the show‑cause notice trial it was not necessary to have an inquiry conducted through an Inquiry Officer or Inquiry Com mittee in this case. Secondly it is argued that copy of the statement of allegations was not supplied to the appellant by the Authorised Officer alongwith the show‑cause notice.

5. So far as the first objection is concerned, it is not the requirements of rule 5(3) of the Baluchistan Civil Servant (Efficiency and Discipline) Rules, 1974 that the Authorised Officer should specifically mention in the show‑cause notice that it has been decided not to have an inquiry conducted through an Inquiry Officer or Committee. The very fact that a show‑cause notice was issued to him, was itself a clear indication of the fact that an Inquiry under Rule 6 was not contemplated. Because in the latter case is charge‑sheet and not a mere show‑cause notice would have been served upon the appellant. The objection of the learned counsel for the appellant is therefore not sustainable.

6. The second objection regarding non‑supply of the copy of the state ment of allegations is also not tenable because a bare perusal of the show cause notice would show that all the allegations against the appellant have been mentioned therein in thorough detail. Serving of a separate statement of allegations would have simply amounted to the repetition of the contents of the show‑cause. We are therefore of the opinion that no predjudice has been caused to the appellant due to this omission. There are several enclo sures with this show‑cause notice in which all the items of alleged wrongful expenditure, have been mentioned in minute detail. The appellant therefore could have been in no doubt as to the exact nature of allegation which he ‑was required to explain.

7. In view of the above the appeal in respect of his reversion order dated 21st October, 1975 is dismissed.

8. The question that now requires to be determined is whether the second show‑cause notice dated 30th April, 1976 and the consequent order of compulsory retirement of the appellant is valid or not. It may be stated that this order was challenged by the appellant in the High Court by means of a writ petition which was dismissed on 18th June, 1970 and thereafter he filed this appeal before this Tribunal. The show‑cause notice which is Annexure 'F' is quite vague and does not contain the allegations of mal practices. The presumption is that the malpractices could not have been other than those which had already been mentioned in the first show‑cause notice and for which he had already been punished. It has therefore rightly been argued that the appellant has been punished twice for the same act, which is a contravention of the fundamental right as embodied in Article 13 of the Constitution. So far as the allegation of persistent reputation of being corrupt, is concerned this too is vague and not supported by a detailed statement of allegations. It appears that this allegation has been added in the show‑cause notice by way of second thought by the Government in order to show that there was a fresh muse of action for fresh proceeding against the appellant. In the first show‑cause notice there was no mention of corrupt reputation. Hence it has been argued on behalf of the respondents that, at least in respect of this allegation, the Government had a fresh cause to proceed against the appellant.

9. No doubt the Government was empowered to start fresh proceedings against the appellant if any fresh material had come to its notice about the new allegation i. e. persistent reputation of being corrupt. But the appellant was at least entitled to know that tire basis or the material which had enabled the Government to level this fresh allegation against him, only after 8 months, of the first show‑cause notice. It is precisely for this reason that a show‑cause notice is usually accompanied by a detailed statement of allegations, This was not done in this case which means that the appellant was not given, proper opportunity of being heard. The respondent intended to impose al major penalty upon the appellant, hence it would have been proper it an inquiry had been conducted through an Inquiry Officer or an Inquiry Com mittee so that the appellant would have hail proper opportunity of defending himself. It is surprising that on 8-9‑1975 when the first show‑cause notice was served upon him, the appellant had no such reputation. For the first time this fact was stated by the Government on 13th April, 1976 i. e, after about, 8 months of the first show‑cause notice. By its very nature, persistent reputa tion should be taken to be extending over a sufficient period of time. Hence if at the time of second show‑cause notice i.e. on 13th April, 1976 he had such reputation, it could be said that even at the lime of the first show‑Gauge notice he must be enjoying the same reputation. Still there was no mention of such allegation in the first show‑cause notice.

10. We are therefore of the view that the second order of compulsory retirement has been made by the respondent without affording proper; opportunity to the appellant of defending himself and without placing on the necessary material before the appellant to enable him to explain hip, position. This order therefore cannot be sustained.

11. Consequently the appeal is partly accepted to the extent that the order dated 17th May, 1976 in respect of his compulsory retirement only as illegal and is set aside, white the first order in respect of his reversion as Sub‑Divisional Officer is upheld. Appeal partly accepted.